Weigand v. State

Decision Date29 November 1912
Docket Number22,127
Citation99 N.E. 999,178 Ind. 623
PartiesWeigand v. State of Indiana
CourtIndiana Supreme Court

From Perry Circuit Court; William Ridley, Judge.

Prosecution by the State of Indiana against Joseph Weigand. From a judgment of conviction, the defendant appeals.

Affirmed.

Philip Zoercher, for appellant.

Thomas M. Honan, Attorney-General, Thomas H. Branaman, Edwin Corr and James E. McCullough, for the State.

OPINION

Spencer, J.

Appellant was charged in the Perry Circuit Court with the murder of Kate Drury. On a trial before a jury he was convicted of murder in the first degree, and, over his motion for a new trial, was sentenced to be imprisoned during his life. Appellant does not deny that he shot and killed decedent, but claims that at that time he was a person of unsound mind. There is presented to this court several alleged errors by which he seeks a reversal of the judgment below.

The following facts were undisputed. Appellant and decedent, Mrs Kate Drury, were residents on adjoining lots. The Drury lot fronted south, with the east side thereof extending along an alley. Appellant's lot was immediately north of this lot and fronted east on the alley. A board fence separated the two lots. Decedent maintained a chicken yard on her lot just south of this fence, and kept therein a number of chickens. Appellant kept his chickens in a small lot on the north side of this fence, but devoted most of his lot to the growing of vegetables and flowers. Mrs. Drury permitted her chickens to run outside of her yard, in the alley and in appellant's yard, after being told repeatedly to keep them within her own yard. During the afternoon of January 7 1911, appellant saw a number of Mrs. Drury's chickens in his yard, and noticed several boards were off the partition fence. He replaced the boards and fastened them to the fence. When Mrs. Drury returned home, she saw the boards were replaced. Taking an ax she proceeded to knock them off, that her chickens might come into her lot. Appellant saw her, and while she was in the act of displacing the boards, got his rifle, pointed it at her, took aim and fired. The bullet struck her in the head, inflicting a serious wound, from the effects of which she died on January 15, 1911.

The indictment was in one count, charging first-degree murder, and was based on § 2235 Burns 1908, Acts 1905 p. 584, § 347, which is as follows: "Whoever, purposely and with premeditated malice, or in the perpetration of or attempt to perpetrate a rape, arson, robbery or burglary, or by administering poison or causing the same to be administered, kills any human being, is guilty of murder in the first degree, and on conviction shall suffer death, or be imprisoned in the state prison during life."

Appellant has waived alleged errors to all the instructions given by the court of its own motion, except three, sixteen and seventeen, because of his failure properly to present the same in his brief, having failed to discuss them or to point out the alleged defects thereof in his points and authorities as required by Rule 22, clause 5, of this court. Schondel v. State (1910), 174 Ind. 734, 93 N.E. 67; Bader v. State (1911), 176 Ind. 268, 94 N.E. 1009; Hoover v. State (1903), 161 Ind. 348, 68 N.E. 591; Sanderson v. State (1907), 169 Ind. 301, 82 N.E. 525.

Instruction three contains the following inaccurate statement, as applied to this case: "Or of one of the counts thereof." The indictment was in one count. Appellant insists that the above statement confused the jury, causing it to misconstrue the word "count" to mean one of the "elements" which he has applied to this case. This statement was a verbal inaccuracy on the part of the court. "Mere verbal inaccuracies in instructions, or technical errors in the statement of abstract propositions of law, furnish no grounds for reversal, when they result in no substantial harm to the defendant, if the instructions, taken as a whole, correctly state the law applicable to the facts of the case, nor is the giving of an erroneous instruction reversible error when it appears that the substantial rights of the defendant have not been prejudiced thereby." Musser v. State (1901), 157 Ind. 423, 444, 61 N.E. 1. See, also, Shields v. State (1897), 149 Ind. 395, 406, 408, 49 N.E. 351; Harris v. State (1900), 155 Ind. 265, 58 N.E. 75; Eacock v. State (1907), 169 Ind. 488, 502, 82 N.E. 1039; Knapp v. State (1907), 168 Ind. 153, 79 N.E. 1076; Heyl v. State (1886), 109 Ind. 589, 593, 10 N.E. 916. This instruction correctly defines reasonable doubt, and is supported by Harris v. State, supra, and we cannot say that it resulted in substantial harm to appellant.

Instruction sixteen, given by the court of its own motion, was in regard to the hypothetical questions propounded by appellant's attorney. It, in effect, instructed the jury to determine from all the evidence what the real facts were, and whether they had been properly and correctly stated in such questions, the same as any other fact, and if found to be true, to give credit thereto, but if the same were not true and were incorrect, then to attach no weight and give no credit to the opinions based thereon.

"A hypothetical question, if it is to be of any value, should embrace facts of which there is some evidence, or which may fairly be inferred from the evidence." Taylor v. Taylor (1910), 174 Ind. 670, 93 N.E. 9-12.

"The value of an opinion given by an expert upon a hypothetical question must depend upon the facts proved which are embraced in the question." Thomas v. Dabblemont (1903), 31 Ind.App. 146, 149, 67 N.E. 463.

Instruction seventeen, properly presented the element of insanity, as provided in Acts 1909 p. 202.

Appellant contends that the court erred in refusing to give certain instructions requested by him. There was no available error in this, for the reason that the instructions requested do not appear to have been signed by appellant or his counsel when delivered to the court, as the statute requires. Section 2136 Burns 1908, subd. 6, Acts 1905 p. 584, § 260; Pittsburgh, etc., R. Co. v. O'Conner (1909), 171 Ind....

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  • Weigand v. State
    • United States
    • Supreme Court of Indiana
    • November 29, 1912
    ...178 Ind. 62399 N.E. 999WEIGANDv.STATE.No. 22,127.Supreme Court of Indiana.Nov. 29, Appeal from Circuit Court, Perry County; William Ridley, Judge. Joseph Weigand was convicted of murder in the first degree, and he appeals. Affirmed. Instructions Nos. 3 and 17 were as follows: “(3) Before th......

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