Wolfe v. State

• Decision Date: 12 January 1928
• Docket Number: No. 25149.,25149.
• Citation: 200 Ind. 557,159 N.E. 545
• Parties: WOLFE v. STATE.
• Court: Indiana Supreme Court

200 Ind. 557

159 N.E. 545

WOLFE

v.STATE.

No. 25149.

Supreme Court of Indiana.

Jan. 12, 1928.

Appeal from Delaware Circuit Court.

Charles Wolfe was convicted of murder in the first degree and he appeals. Affirmed.F. F. McClellan, D. D. Hensel, L. A. Guthrie, and J. J. O'Neill, all of Muncie, for appellant.

Arthur L. Gilliom, Atty. Gen., and George J. Muller, Jr., Deputy Atty. Gen., for the State.

GEMMIL, J.

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 60 causes are stated, but only 7 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.

[1][2][3] 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:

“As I remember the question, I said, ‘Who did the shooting?’ He said, ‘Dutch Anderson.’ Whether he said ‘Charles Wolfe’ or ‘One Arm Wolfe,’ I am not quite sure, and I think I asked the question, ‘Why did they do it?’ He said, ‘I told on them.’ I said, ‘Who are they, who are these, who are Anderson and Chapman?’ At that time it didn't occur to me at all. He said, ‘They are highwaymen.’ ‘Who is Anderson?’ ‘Who is Wolfe?’ ‘Pals of Gerald Chapman.’ As I remember the answer that he gave.”

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 (3d 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 the pals of a well-known criminal. The only purpose of the statement, “I told on them,” was to show a motive for the commission of the crime by the persons who committed it. Proof of motive is not essential to the conviction of one charged with murder, and motive may be inferred from the commission of the crime. Hinshaw v. State (1897) 147 Ind. 334, 47 N. E. 157.

In the trial of this case, it was not necessary for the state to show that defendant had a motive, if he committed the crime. The defendant attempted to prove an alibi, and presentedno other defense. The statement, “I told on them,” should not have been admitted in evidence, as it related to a former transaction; but the admission of same was to prove a fact which it was unnecessary to prove. Where evidence has been erroneously admitted to prove an undisputed fact, the error has frequently been held nonprejudicial. 2 R. C. L. 250, § 206. Illegal proof of what need not be proved at all will not vitiate a verdict. Beagles v. Sefton (1856) 7 Ind. 496, 498.

[4][5] The admission of immaterial evidence will be treated as harmless, unless it is made to appear that the appellant was probably injured thereby in some material respect. Ewbank, Manual of Practice (2d Ed.) § 257. Where it affirmatively appears, or where it may be fairly inferred, that in the particular case the erroneous admission of evidence could not have influenced the verdict, the error is always to be regarded as harmless. Elliott, Appellate Procedure, § 641. While perhaps the courts are more likely to hesitate in applying the harmless error doctrine against one accused of crime, still, even in criminal cases, when it can be clearly seen that the accused was not prejudiced by the erroneous admission of the evidence objected to, a reversal will be refused. 2 R. C. L. 247, § 205. As the alibi of defendant did not prevail, then it did not matter what motive entered into the commission of the crime. The objectionable statement erroneously admitted in evidence could not, under the circumstances, have changed or influenced the verdict. The error was harmless.

[6][7] Appellant contends that the court erred upon the trial in permitting F. L. Thornburg, while testifying for the state, upon his direct examination, to answer, over the objection and exception of the defendant, the following question:

“Did you hear distinctly what Mr. Booher told you?”

To which question the witness made the following answer:

“Yes, sir; I am sure I understood what Booher told me, because I remember very distinctly hearing him say Anderson, but then I wasn't acquainted with the name ‘Wolfe,’ and I said then, I says, ‘Who was the second party,’ and he says, ‘He says his name is Wolfe.”’

Mr. Booher was the marshal of Middletown, and was questioning Mr. Hance prior to his removal to the hospital, and the witness was writing down the answers he made. The record does not show that any objection was made to the question, and there was no objection after the question was asked to the witness answering same. He also claims that the court erred in refusing to strike out said answer. It is not necessary to decide if the part of the evidence which Mr. Booher repeated to him, which purported to be a statement of Hance, and which the witness did not hear, was hearsay and incompetent. Even if not competent evidence, appellant could not have been harmed by same, as there was the competent, uncontradicted testimony of several witnesses to the same fact. 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 that is not contradicted. Ewbank, Manual of Practice (2d Ed.) § 257.

[8] Appellant complains of instruction No. 18, given by the court on its own motion, as being erroneous. Same reads as follows:

“Any fact necessary to be proved in this case may be proved by direct evidence of eyewitnesses, or by circumstantial evidence, or by both circumstantial evidence and direct evidence of eyewitnesses. Circumstantial evidence is to be regarded by the jury in all cases. When it is strong and satisfactory, the jury should so consider it, neither enlarging nor belittling its force. It should have its just and fair weight with the jury, and, if when it is all taken as a whole, and fairly and candidly weighed, it convinces the guarded judgment, the jury should act upon such conviction. You are not to fancy situations or circumstances which do not appear in the evidence, but you are 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.”

It is appellant's contention that this instruction erroneously directed the weight to be given by the jury to circumstantial evidence, placed a limitation upon the constitutional right of the jury as judges of the law and facts, disregarded the rule of reasonable doubt, and was out of harmony with that part of criminal procedure that presumes that a defendant is innocent until the contrary is proved beyond a reasonable doubt. A like instruction was approved in Smith v. State (1901) 61 Neb. 306, 85 N. W. 52, in which the court said:

“We do not think the exception [which was to the instruction] well taken. The instruction fairly states a rule applicable to the force and effect to be given circumstantial evidence. It occurs to us that it is a conservative statement of the rule announced. *** The rule as announced has received judicial sanction in many other jurisdictions.”

A similar instruction was approved in State v. Seymour (1895) 94 Iowa, 699, 708 63 N. W. 661. The objections of appellant to this instruction cannot be sustained.

Objection is made to the following instruction No. 19, given by the court on its own motion:

“Evidence may be either direct or circumstantial. Direct evidence is evidence of a particular fact or circumstances which forms a subject of judicial investigation. Circumstantial evidence is evidence of other or collateral facts and circumstances from which the particular fact, which forms the subject of judicial investigation, is or may be inferred to justify a conviction of the defendant. In any case, on circumstantial evidence alone, the circumstances disclosed by the...