Weigand v. State, No. 22,127.

• Docket Nº: No. 22,127.
• Citation: 178 Ind. 623, 99 N.E. 999
• Case Date: November 29, 1912
• Court: Supreme Court of Indiana

178 Ind. 623
99 N.E. 999

WEIGAND
v.
STATE.

No. 22,127.

Supreme Court of Indiana.

Nov. 29, 1912.

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 there can be a conviction in this case, it is incumbent upon the state to prove all the material allegations of the indictment, or of one of the counts thereof, to the satisfaction of the jury beyond a reasonable doubt. The reasonable doubt considered in a criminal case and which is sufficient to entitle the defendant to an acquittal is a doubt arising from all the evidence in the case or from a want of evidence.

[99 N.E. 1000]

Evidence is sufficient to remove a reasonable doubt when it is sufficient to convince the judgments of ordinarily prudent men of the truth of a proposition with such force that they would act upon that conviction without hesitation, in their own most important affairs, when they were not compelled to act.”

“(17) If your verdict be against the defendant finding him guilty of murder in the first degree or of murder in the second degree, then you will fix his punishment, and so state in your verdict, but, if you find him guilty of manslaughter, then you will simply state that fact in your verdict giving his age, but you will not fix his punishment. In addition to the foregoing finding, it is necessary for the jury to find as to the sanity of the defendant at the time of the commission of the alleged homicide. It is the law of this state that, when the defense of insanity is interposed by any male person accused of a felony, the court or jury trying the cause shall make a finding both as to the sanity of said defendant at the time so claimed, and as to whether he committed the act as charged. And if it shall be found in favor of the defendant on his plea of insanity, but against him as to the commission of the act charged, he shall upon order of the court be committed to and confined in the Indiana colony for the insane criminals in like manner and on such conditions and for such terms as is now provided for by law for the confinement of insane criminals in a state hospital for the insane.”

Philip Zoercher, of Tell City, for appellant. Thomas M. Honan, Atty. Gen., Thomas H. Branaman, of Indianapolis, Edwin E. Corr, of Bloomington, and Jos. E. McCullough, of Indianapolis, for the State.

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 the deceased, 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 the deceased, 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 upon the alley. A board fence separated the two lots. The deceased 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 time 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 repeatedly told 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 of 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...