Welty v. State
| Decision Date | 18 December 1912 |
| Docket Number | 22,023 |
| Citation | 100 N.E. 73,180 Ind. 411 |
| Parties | Welty v. State of Indiana |
| Court | Indiana Supreme Court |
[Copyrighted Material Omitted]
Rehearing Denied November 19, 1913.
From Clinton Circuit Court; Joseph Combs, Judge.
Prosecution by the State of Indiana against Oscar Welty. From a judgment of conviction, the defendant appeals.
Affirmed.
Sheridan & Gruber and Blacklidge, Wolf & Barnes, for appellant.
Thomas M. Honan, Attorney-General, Thomas H. Branaman, Edwin Corr, James E. McCullough and A. G. Manning, for the State.
OPINION
Appellant was prosecuted upon indictment returned by the grand jury of Howard County, Indiana, for the alleged murder of one Edwards, and was convicted of murder in the second degree, and imprisoned for life. The indictment was in four counts, a motion to quash the fourth of which was sustained, and the errors assigned and not waived are, in overruling appellant's motion for a new trial. The questions presented arise principally upon instructions given, and instructions requested and refused. In the order of presentation, instruction No. 26a is as follows:
As to this instruction the contention of appellant is, that by reason of other instructions given, the use of the words "no provocation by mere words will reduce the killing to manslaughter", for the reason that under our statute, the mere proof of killing fails to show the class of homicide, whether murder, manslaughter, or excusable killing, and that there is no presumption that the killing in the first instance is murder, and therefore needs to be reduced; that the burden is upon the State to establish a crime of higher degree than manslaughter; that the defendant was not bound to establish facts sufficient to reduce it from murder to manslaughter; also, that it is erroneous in the use of the following words, "The use of a dangerous weapon under a provocation by words only, or under no provocation, is always evidence of malice aforethought"; also, that to instruct that "the use of a dangerous weapon is always evidence of malice aforethought," is erroneous, where there is evidence tending to prove homicide under circumstances to constitute manslaughter, for the reason that it points out one particular fact, and advises that malice flows therefrom, and advises that the jury may disregard all other evidence tending to negative malice, and generally, that where the killing is admitted, and the facts are detailed by eye witnesses, and evidence is introduced placing the question of malice in issue, it is error to instruct that any particular act, or fact, raises a presumption, or inference of malice; for the reason that it advises the jury that they may disregard all other evidence tending to negative malice, and that malice must be proven beyond a reasonable doubt, under the continued presumption of innocence which attends a defendant charged with crime, through every step of a trial, and that this instruction violated the presumption of innocence, and that malice being a material fact to constitute murder in the second degree, it is a question of fact for the jury upon all the evidence, and that this instruction withdrew the question of manslaughter from the jury.
In order to have a full and correct understanding of the instructions in this case, it is necessary to look at the evidence. There is evidence tending to show that decedent did not bear a good reputation for peace and quietude, and that he had some reputation, known to appellant, as quarrelsome and carried a knife, and had had some brawls. There is other evidence that he was peaceable and well disposed. The same thing, however, appears to have been true in some measure as to appellant's moral character. He was always armed, though he was a peace officer, but had many brawls. The evidence shows that appellant was called upon by decedent, with whom appellant had had several difficulties in a business way, and appellant claimed decedent had made threats against him, to prepare a conditional contract of purchase of a horse by decedent from one Thomas. It was at about 7:30 o'clock p. m. on a day in the middle of July; decedent was dissatisfied with the manner in which the contract was drawn, and arose to leave the room, and stated that they, he and Thomas, would go somewhere else to have the contract drawn, though it was satisfactory to Thomas as drawn by appellant. Appellant grabbed decedent roughly, and demanded pay for the work done. Decedent broke away twice, and started to go down a stairway leading from appellant's office, when appellant shoved, or kicked him, at which time decedent struck him two or three times on the arm with a small stick, weighing four ounces, which he picked up in the hallway, and went on down to the foot of the stairway, from which he called up the stairway several times to Thomas to come on, and they would go somewhere else and get the contract drawn. Appellant returned at once after kicking, or kicking at, or shoving, decedent, and stated to Thomas that he had been struck on the arm by Edwards, and as Edwards continued to call up the stairway, appellant started down the stairway with the remark that he would fix, or kill, the ___ ___ ___ ___. Appellant claims that Edwards in calling up the stairway called him a vile name. Thomas, in appellant's room with him, with an equal opportunity to hear, heard nothing of that kind. Appellant upon making the remark attributed to him, went down the stairway to the bottom where decedent was, at which time there is evidence that appellant was cursing, and also evidence that when appellant came down the stairway decedent seemed scared, and tried to go away, and that appellant again said "you black ___ ___ ___ ___, I am going to kill you," and struck decedent, and that decedent threw up his arm as if to push, or strike, or ward off a blow, dropped the small stick he had in his hand, and started to move off briskly, or to run, at which time, when something like fifteen feet from appellant, and moving away from him, appellant fired at him, and upon his reaching the corner of a street, appellant following him at about the same gait, if any difference gaining upon him, decedent turned around the corner of a building to the left, and passed ten or fifteen feet beyond the corner and in front of an automobile adjoining the curb line on the north side of the street, and into the cross street in an angling direction to the southeast, and called out several times "stop," but appellant followed him, and as appellant reached the curb line, he fired again at decedent, who made a step or two, staggering forward, and moved on in the street southeasterly, and appellant followed into the roadway, where he stopped, raised his right arm from his side, so that the revolver traveled up the body of the man in front, then ten or twelve feet away from him, and when the revolver was in line with the back of decedent, he brought his left arm around in support of the right arm, or took hold of the revolver with his left hand, and fired; the body of decedent swayed a moment, and stopped, his knees crumpled under him, and he fell forward sidewise, turned over and groaned, threw his arm over his face and exclaimed, "My God, he has killed me," and expired. Appellant stood with his arm extended, and the revolver in his hand, until decedent turned over, where he fell, when appellant, with the revolver in his hand, turned, saying, "I'll show you how to call me a ___ ___ ___ ___," and walked back to and up the stairway. There was also evidence that appellant had been drinking more or less for some time, and some witnesses believed he was somewhat under the influence of drink, and others that he was not at the time affected by it, and there was evidence that decedent had said at the foot of the stairway something about being able to whip appellant if he was down on the ground. Appellant was in vigorous health, and weighed 210 pounds; decedent was a colored man about 60 years of age, and weighed from 140 to 150 pounds. The postmortem examination showed that all three shots took effect in Edwards' body, all three entering his back, two near together, through the left shoulder, the third through the spine to the right of the first lumbar vertebra, passed through the stomach, and came out at the lower rib to the left of the middle line in front; this last shot is given as the death wound. Appellant had followed decedent about fifty feet, during all which time decedent was moving or running away from him, and he following to the extent of passing around and beyond the corner of a building, which decedent had turned, and going beyond the corner twenty to twenty-five feet, and out into the street before the last shot was fired. Decedent had no arms or knife, and the small stick which he had on the stairs, with which he struck appellant, was dropped by him at the foot of the stairs. Appellant testified that he called the attention of Thomas, the man in his office, to the fact that...
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