Wolfe v. State
| Decision Date | 12 January 1928 |
| Docket Number | 25,149 |
| Citation | 159 N.E. 545,200 Ind. 557 |
| Parties | Wolfe v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied March 6, 1929.
1. HOMICIDE---Dying Declarations---Declarations Excluded.---Statements of facts and circumstances, not immediately connected with the act of killing, but relating to previous distinct transactions, are not admissible as dying declarations. p. 560.
2. HOMICIDE---Dying Declarations---Identity of Slayer.---Statements of one who had been mortally wounded as to the names of the parties who shot him and that they were highwaymen and were the pals of a well-known criminal were admissible as dying declarations. p. 560.
3. HOMICIDE---Motive---Proof Unnecessary.---Proof of motive is not essential to the conviction of one charged with murder and motive may be inferred from commission of crime. p. 560.
4. CRIMINAL LAW---Evidence---Improper Evidence---Effect.---Illegal proof of what need not be proved at all will not vitiate a verdict. p. 560.
5. CRIMINAL LAW---Immaterial Evidence Admitted---Effect---Rule Stated.---The admission of immaterial evidence will be treated as harmless on appeal unless it is made to appear that the appellant was probably injured thereby in some material respect. p. 560.
6. CRIMINAL LAW---Trial---Admission of Incompetent Evidence---Held Harmless.---Erroneous admission of a statement in a dying declaration as to the motive of the defendant in committing the crime charged was harmless error when it was not necessary to prove his motive and the statement could not have changed or influenced the verdict p. 560.
7. HOMICIDE---Trial---Hearsay Testimony---Admission Held Harmless.---The admission in evidence of hearsay statements of the victim of a homicide as to the identity of his assailants was harmless error where the fact sought to be proved was established by other uncontradicted competent evidence, p. 560.
8. CRIMINAL LAW---Trial---Admission of Incompetent Evidence---Held Harmless.---The admission of incompetent evidence to prove a given fact will be treated as harmless when the same fact is fully established by competent evidence which is not contradicted. p. 562.
9. CRIMINAL LAW---Instruction as to Circumstantial Evidence Held not Error.---In a prosecution for murder, an instruction directing the jury to consider the circumstantial evidence in the case, give it fair weight, and if it convinced the guarded judgment of the jurors, to act upon the conviction, and further instructing the jury that it was to make such just and reasonable inferences from the circumstances proved as the guarded judgment of a reasonable man ordinarily would make under like circumstances, was not erroneous. p. 563.
10. HOMICIDE---Dying Declarations---Constitute Direct Evidence.---Dying declarations constitute direct evidence of the facts which they tend to prove as distinguished from circumstantial evidence of such facts. p. 564.
11. HOMICIDE---Circumstantial Evidence---Circumstances Closely Connected with Homicide.---In a prosecution for murder, testimony that victims were shot by one man, that another who was with him said immediately thereafter "come on, let's get out of here," and they got into an automobile and left, and other testimony that defendant had been seen at points from one to nine miles away, near the time of the homicide, held to be "circumstantial evidence," corroborating direct evidence of victim's dying statements that defendant shot him. p. 564.
12. CRIMINAL LAW---Trial---Instructions---As to Circumstantial Evidence---When May be Refused.---Where there is direct testimony before the jury that defendant committed the crime charged, the court is not required to instruct on the subject of circumstantial evidence alone. p. 566.
13. CRIMINAL LAW---Trial---Erroneous Instruction on Circumstantial Evidence---Held Harmless.---An instruction on circumstantial evidence which erroneously used the word "consistent" for "inconsistent" in the statement that the proof must not only coincide with the hypothesis of guilt, but that it "must be consistent with every other rational conclusion" did not require a reversal where there was direct testimony of the facts sought to be proved by circumstantial evidence and such facts were only corroborative of the direct testimony, as such an instruction was not necessary to the trial of the case and could not have harmed the defendant (Hampton v. State, 160 Ind. 575, distinguished). p. 566.
14. CRIMINAL LAW---Trial---Instruction as to Duty of Jurors---Interpretation of Law.---An instruction that the jurors may not willfully and arbitrarily disregard the law nor make and judge the law as they think it should be in any particular case, but that they must so judge and interpret the law as to give it effect, "to the end that each and every law in each and every case may be fairly and honestly enforced," was held not to constitute reversible error, although approaching the limit which the court is willing to approve. p. 568.
15. CRIMINAL LAW---Instructions Defined.---Instructions proper are directions as to the law of the case, and a statement to the jury not bearing upon the questions of law or fact involved in the issues, is not to be considered as an instruction. p. 570.
16. CRIMINAL LAW---Instructions---Mere Directions to Jury not Included.---A direction to the jury as to its duties, not involving any principle of law affecting the merits of the case, is not an instruction within the meaning of the statute requiring instructions to be in writing, when properly requested (cl. 5, 2301 Burns 1926). p. 570.
17. CRIMINAL LAW---Instructions---Oral Statement Concerning Indictment---Need not be in Writing.---An oral statement to the jurors, made after written instructions had been read to the jury, directing them that they would be permitted to take the indictment to the jury room and that they might read it and look it over, but that it was not to be taken as evidence against the defendant, was not an "instruction" within the meaning of the statute requiring the instructions to be in writing when properly and timely requested (cl. 5, 2301 Burns 1926). p. 570.
From Delaware Circuit Court; Clarence W. Dearth, Judge.
Charles Wolfe was convicted of murder in the first degree, and he appeals.
Affirmed.
O'Neill & Bales, McClellan & Hensel and James J. Moran, for appellant.
Arthur L. Gilliom, Attorney-General, and Dale F. Stansbury, Deputy Attorney-General, for the State.
Appellant, by an indictment in two counts returned by the grand jury of Delaware County, was charged in each count with the crime of murder in the first degree. It was alleged therein that he and George Anderson, on or about August 14, 1925, unlawfully, feloniously and purposely, with premeditated malice, killed and murdered Benjamin Hance by shooting him. The homicide occurred on a public highway about eleven miles from the city of Muncie. He died a short time later at a hospital in that city. Mary Hance, his wife, was shot and killed at the same time and place. Appellant entered a plea of not guilty. George Anderson, indicted with appellant, was deceased at the time of the latter's trial. The jury found that appellant was guilty of the crime of murder in the first degree and fixed his punishment at imprisonment at the Indiana State Prison for and during life. Judgment was rendered on the verdict.
The only error assigned and now presented is that the court erred in overruling appellant's motion for a new trial. In the motion for a new trial, sixty causes are stated, but only seven of same are relied upon for reversal of the judgment. The causes for a new trial will be considered in the order in which they arose during the trial, and not in the order presented in appellant's brief.
One of the witnesses for the state was Fred T. Loftin, who testified concerning dying declarations made by Benjamin Hance at the scene of the shooting. The witness was asked the following question: "I wish you would go ahead and tell the jury what he said about that?" He answered: The defendant moved to strike out the answer and certain parts of same, which motion was overruled by the court. This ruling is assigned as error. The validity of the dying declaration was questioned, but its competency as such is admitted in appellant's brief. Appellant claims that part of it should not have been admitted, because it was a narrative of a former event. That part was the statement "I told on them," made by Hance, and referred to Anderson and Wolfe. Appellant correctly contends that the rule is that statements of facts and circumstances not immediately connected with the act of killing, but relating to previous distinct transactions, are not admissible as dying declarations. 1 R. C. L. 535, § 78; Underhill, Criminal Evidence (3rd ed.) § 178; Wharton, Criminal Evidence (10th ed.) § 278. The name of the person who committed the homicide as well as the name of his victim may be proved by the dying declarations of the latter. Boyle v. State (1886), 105 Ind. 469, 5 N.E. 203, 55 Am. Rep. 218. It was competent for the injured party in his dying declaration to state who had shot him. It was also competent for him to state that they were highwaymen and were...
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