Welty v. State
Decision Date | 18 December 1912 |
Docket Number | No. 22,023.,22,023. |
Citation | 100 N.E. 73,180 Ind. 411 |
Parties | WELTY v. STATE. |
Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Clinton County; Joseph Combs, Judge.
Oscar Welty was convicted of murder in the second degree, and he appeals. Affirmed.
Instructions Nos. 15, 19, and 33, given by the court, were as follows:
(15)
(19)
(33) “A mortal wound, given with a deadly weapon in the previous possession of the slayer, without any or upon very slight provocation, is prima facie willful and premeditated.”
Sheridan & Gruber, of Frankfort, and Blacklidge, Wolf & Barnes, of Kokomo, for appellant. Thomas M. Honon, Atty. Gen., Thomas H. Branaman, of Indianapolis, Edwin Corr, of Bloomington, Jas. E. McCullough, of Indianapolis, and A. G. Manning, of Kokomo, for the State.
Appellant was prosecuted upon indictment returned by the grand jury of Howard county, Ind., 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 given by mere words will reduce the killing to manslaughter,” was error, 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 eyewitnesses, 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.
[1][2] In order to a full and correct understanding of the instruction in this case, it is necessary to look at the evidence. There is evidence tending to show that the deceased 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 the deceased, with whom appellant had had several difficulties in a business way, and appellant claimed the deceased had made threats against him, to prepare a conditional contract of purchase of a horse by the deceased from one Thomas. It was at about 7:30 o'clock p. m. on a day in the middle of July The deceased was dissatisfied with the manner in which the contract was drawn, and arose to leave the room, and stated that they (himself and Thomas) would go somewhere else to have the contract drawn, though it was satisfactory to Thomas as drawn by appellant. Appellant grabbed deceased roughly, and demanded pay for the work done. The deceased broke away twice, and started to go down a stairway leading from appellant's office, when appellant shoved or kicked him, at which time deceased 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 the deceased, 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 stairs with the remark that he would fix, or kill the - - - -. Appellant claims that Edwards, in calling up the stairway, called him 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 deceased was, at which time there is evidence that appellant was cursing, and also evidence that, when appellant came down the stairs, the deceased seemed scared, and tried to go away, and that appellant again said, “You black - - - -, I am going to kill you,” and struck deceased, and that the deceased 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 15 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, deceased turned around the corner of a building to the left, and passed 10 or 15 feet beyond the corner and in front of an automobile adjoining...
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