Welch v. The State

• Decision Date: 15 December 1885
• Docket Number: 12,460
• Citation: 3 N.E. 850,104 Ind. 347
• Parties: Welch v. The State
• Court: Indiana Supreme Court

3 N.E. 850

104 Ind. 347

Welch v. The State

No. 12,460

Supreme Court of Indiana

December 15, 1885

From the Monroe Circuit Court.

Judgment reversed.

J. H Louden and R. W. Miers, for appellant.

J. E Henley, Prosecuting Attorney, and W. P. Rogers, for the State.

OPINION

Mitchell, J.

The indictment in this record charges, with proper formality that on the 4th day of January, 1885, William Welch did feloniously, etc., kill and murder one Louis Fedder, by then and there feloniously, etc., "striking him, the said Louis Fedder, upon his head, with a dangerous and deadly weapon, to wit, a large, heavy club, which he, the said William Welch, had and held in his hands."

The only objection made to the indictment is that by the omission of the words "then and there," after the name of the accused as last above set out, it fails to allege that the defendant had the club in his hand at the time of the beating and striking. Within the ruling in Dennis v. State, 103 Ind. 142, 2 N.E. 349, there is no force in this objection.

The accused was found guilty of murder in the first degree, and his punishment fixed at imprisonment for life. His conviction rests largely, if not entirely, upon the testimony of one Matthew James, whose evidence relates wholly to alleged confessions or admissions made by the defendant to him.

Besides the testimony of James and some criminating circumstances of more or less weight, the evidence of the alleged confession, as detailed by this witness, is not altogether free from suspicion, and the circumstances under which it is said to have been made, and the not altogether unblemished reputation of the witness, as it is made to appear in the record, detract somewhat from the force and reasonableness of the confession as related by him. Notwithstanding this, considering the other circumstances which appear since the jury have passed upon it, we should hesitate to disturb their finding on the evidence.

The witness testified that the defendant made admissions to him indicative of his guilt, in the presence of Andrew Cooper and Charles Young. Both of these persons were called as witnesses for the defence, and both denied having heard anything of the kind testified to by James.

Cooper having testified on his direct examination that he heard no confession made by the defendant to James, and no talk between them about the murder of Fedder, was asked on cross-examination by counsel for the State this question: "I will ask you if, in the barber shop of William Profit, here in Bloomington, you did not say there that morning that you knew Bill Welch was the man that killed Louis Fedder."

To this question the appellant objected, for the reason that it was asking the witness for an opinion expressed by him out of hearing of defendant, and was not asking for a fact, and was not a cross-examination, which objection was overruled, and defendant excepted, and the witness answered, "I did not."

The State then asked the witness: "And if you did not say there that you were willing to bet $ 250 that Bill Welch was the guilty man?"

To this question the appellant again objected, for the reason stated. The objection was again overruled, and the witness answered, "I did not."

The State then called Wm. Profit, and asked him the following question: "State to the jury whether you heard him (Andy Cooper) make the remark that 'William Welch, or Bill Welch, is the man who murdered old man Fedder; I am not guessing at it, I know it.'"

To this the appellant objected, for the reason that the question was illegal and incompetent, and was hearsay evidence, and was an effort to impeach a witness on irrelevant and immaterial matter, and that the question referred to the opinion of an outside party, which objection the court overruled, and appellant excepted, and the witness answered, "Yes; he said that."

The State then asked the witness the following question: "I will ask you if he said then at the same time and place, 'I will bet,' or 'I am willing to bet $ 250 that he is the man.'"

To which question the appellant again objected, for the same reasons, which objection was again overruled, and defendant excepted, and the witness answered, "Yes, sir; he said that."

The same questions were asked the witness, Harry Innes, by the State, to which the appellant objected for the same reasons.

These rulings of the court were presented, among others, as causes for a new trial.

We know of no principle or authority upon which to maintain the rulings of the court in admitting the testimony of Profit and Innes.

The conversation about which inquiry was made of Cooper on cross-examination was so remotely, if at all, connected with the subject of his direct examination and of the matter in issue, that the rule was put to its utmost tension in allowing the question to be asked him, over the defendant's objection. McIntire v. Young, 6 Blackf. 496.

As, however, if the witness had admitted that he made the declarations imputed to him by the cross-examining question, such admission might have formed the basis for further inquiry as to the sources of his knowledge, or the grounds upon which he based his opinion of the guilt of the accused, with a view of driving him ultimately to an admission that he heard the alleged confession, we think it was within the discretion of the court to allow the question.

Having denied the imputed declarations, we think the State was bound by the denial. The subject about which the witness was inquired of was new and collateral to the main issue. Seller v. Jenkins, 97 Ind. 430. It did not come within the rule that a witness may be shown to have made statements out of court inconsistent with his testimony given upon the trial. The conversation or declarations imputed to him had no relation, except by argument or inference, to the testimony given by the witness on his examination in...