Wood v. State

• Decision Date: 21 December 1883
• Docket Number: 11,039
• Parties: Wood v. The State
• Court: Indiana Supreme Court

92 Ind. 269

Wood v. The State

No. 11,039

Supreme Court of Indiana

December 21, 1883

From the Criminal Court of Allen County.

Judgment reversed.

R. S Robertson and J. B. Harper, for appellant.

F. T Hord, Attorney General, C. M. Dawson, Prosecuting Attorney H. Colerick and W. S. Oppenheim, for the State.

OPINION

Elliott, J.

Appellant was adjudged guilty of manslaughter, and from that judgment prosecutes this appeal.

The indictment charges that, "on the 9th day of March, 1883, at the county of Allen and State of Indiana, Commodore Wood did then and there feloniously, purposely, and with premeditated malice, unlawfully and feloniously kill and murder Charles Shelner, by then and there feloniously, purposely, and with premeditated malice, unlawfully, feloniously, striking, cutting, stabbing and mortally wounding the sad Charles Shelner with a knife, which the said Commodore Wood then and there had and held in his hand."

The objection urged against this indictment is that it does not show that Shelner died from the effects of the stabbing inflicted by the appellant. There is no force in this objection. The charge is made in plain terms that the appellant did feloniously kill Charles Shelner, and surely this is a direct averment that death resulted from appellant's wrongful and malicious act. Veatch v. State, 56 Ind. 584 (26 Am. R. 44); Meiers v. State, 56 Ind. 336. In the averment is contained the charge that death did result, and that the cause of death was the appellant's act.

A prosecuting attorney may properly ask the court to appoint attorneys to assist him in the prosecution of a man accused of crime, and the court commits no error in granting the request. The law freely accords to the accused the assistance of such counsel as he may desire, and there is no reason why the same privilege should not be accorded to the State. The attorneys employed in this case were called by the prosecuting attorney, and we can not say that he did not act fairly and wisely in asking assistance, nor that the court abused its discretion in granting his request. Whether the attorneys can claim pay for their services, or whether the prosecutor can create any claim against the State or county, is not here the question. Our investigation does not extend in that direction, for we are simply to ascertain whether or not an error was committed which prejudiced the rights of the appellant. In holding, as we do, that the State may call counsel to assist in the prosecution, we are sustained by the very decided weight of authority. State v. Wilson, 24 Kan. 189 (36 Am. R. 257); Hopper v. Com., 6 Grat. 684; Shelton v. State, 1 Stew. & P. 208; United States v. Hanway, 2 Wall. Jr. 139; People v. Blackwell, 27 Cal. 65; State v. Bartlett, 55 Me. 200; Edwards v. State, 47 Miss. 581; State v. Russell, 26 La.Ann. 68; Jarnagin v. State, 10 Yerger 529; Dukes v. State, 11 Ind. 557.

The trial court had authority to issue a special venire. This authority is conferred by statute, and a broad discretion is vested in the courts. R. S. 1881, section 1388; Merrick v. State, 63 Ind. 327.

The record does not show any abuse of discretion in this case, and we can indulge in no presumptions against the action of the trial court; on the contrary, we must presume that the court did its duty and justly exercised the discretion with which it is vested.

A special venire may be entitled as of the cause in which it is issued. No material injury can be done by giving the title of the cause, and where there is no substantial injury there can be no reversal.

The statute now in force provides that the defendant may waive an arraignment, and it would have been the proper course in this case to have allowed the appellant to waive an arraignment. There was, however, no material error in refusing to allow a formal waiver to be entered. The court did, perhaps, a useless thing in requiring the appellant to be arraigned after he had asked to enter a waiver, but no substantial injury was done him.

Appellant's counsel are in error in asserting that it is not a question whether a defendant is or is not injured by the ruling of the trial court. Our statute expressly requires that we shall not regard technical errors or defects which did not prejudice the substantial rights of the defendant. R. S. 1881, section 1891.

It is true, that declarations made by persons engaged in an altercation, or made by bystanders during the altercation, are admissible in evidence as part of the res gestoe. Baker v. Gausin, 76 Ind. 317. In order to entitle such declarations to admission, it must appear that they were made during the progress of the affray. We think there was no material error in excluding the testimony of Charles Parker as to an expression used by him while stooping over the body of the deceased, Charles Shelner. This conclusion we rest upon the fact that the witness had stated substantially the same matters in answer to other questions, and not upon the proposition that they were not parts of the res gestoe. Where the witness's answers furnish substantially the same testimony as that called for by an excluded question, there is no material error in the ruling excluding the question, for no substantial injury is done the party.

Where there is a considerable interval of time, as a half an hour, intervening between the declarations of a witness or a party and the commission of a criminal act, the declarations can not be considered as part of the res gestoe. Where, however, the declarations are part of a quarrel which continues as one transaction until it culminates in a homicide, then the declarations made at any time during its progress and connected with it become part of the thing done, and as such competent evidence. Wharton Crim. Ev., section 263; Jones v. State, 71 Ind. 66.

Threats of the person slain against an accused are admissible in evidence in the latter's favor, for the purpose of showing what was in the mind of the accused when the homicide was committed. Holler v. State, 37 Ind. 57 (10 Am. R. 74). They are often admissible for the purpose of aiding in determining who was the aggressor. Campbell v. People, 16 Ill. 17.

In order to avail himself of a ruling denying a right to ask a question, the party by whom the witness is produced must state what he expects to prove. The rule, however, is otherwise on cross-examination. In the latter case the cross-examining party is not required to make such a statement.

The general rule is that the cross-examination must be confined to the subject of the direct examination. This rule sustains the action of the court...