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the residue of this instruction. etc., Ry. Co. v. Hockett, 159 Ind. 678, 66 N. E. 39; Citizens', etc., Ry. Co. v. Jolly, 161 Ind. 80, 67 N. E. 935; Citizens', etc., Ry. Co. v. Hoffbauer, 23 Ind. App. 614, 56 N. E. 54; Kentucky, etc., Co. v. Quinkert, 2 Ind. App. 244, 28 N. E. 338; 5 Am. & Eng. Ency. of Law, 558. Instruction No. 13 given at the request of the appellant expressly advised the jury that railway and traction companies are not insurers of the safety of their passengers; and the instruction complained of, as well as many others, admonished them that appellee could not recover unless she was without fault or negligence contributing to her injury. It is conceded that, as a carrier, appellant is required to exercise the highest degree of care to secure the safety of its passengers, and is responsible for the slightest neglect when such negligence results in injury. In view of this strict require ment, and of other instructions given, and of the conceded facts, we are clear that the objectionable part of this instruction could not have misled the jury or harmed appellant.

It is further contended that instruction No. 4 given at the request of appellee was erroneous, which instruction reads as follows: "The fact that the plaintiff undertook to alight from the car at a time when the car was still in motion does not necessarily make her guilty of contributory negligence. As to whether she could alight from the car at the time she undertook to do so with safety, is a question of fact for you, gentlemen, to determine from all the facts and circumstances in the case. If you find from the evidence, that, at the time she undertook to alight from the car, she could have done so with safety, by the exercise of due diligence and care, then she would not be guilty of contributory negligence, even though you find that the car had not come to a full stop but was still moving." We have already shown that the court could not declare, as a matter of law, upon the conceded facts of this case, that appellee was guilty of contributory negligence. What was said in the consideration of the first proposition argued, and the authorities there cited, uphold the correctness of this instruction, and it is accordingly our conclusion that no error was committed in giving the same to the jury.

No reversible error appearing in the record, the judgment is affirmed.

all reasonable doubt if other necessary circumstances are not, there should be an acquittal.

[Ed. Note.-For cases in point, see vol. 14, Cent, Dig. Criminal Law, 88 1884, 1885.] 2. SAME.

Ou a prosecution for murder the evidence was circumstantial, and defendant requested an instruction to the effect that if any one fact necessary to a conclusion of guilt is wholly inconsistent with the hypothesis of guilt, it breaks the chain of circumstantial evidence upon which the inference of guilt depends, and that, however plausible or apparently conclusive all other circumstances may be, the charge must fail. The instructions given by the court declared that, to justify a conviction upon circumstantial evidence, the circumstances "must all be in harmony with the guilt of the accused"; that in such a case the jury must “be satisfied that all the circumstances proved are consistent with the defendant having committed the act," and “must also be satisfied that the facts are such as to be inconsistent with any other rational conclusion than that defendant is the guilty person.”. Held, that it was error to refuse the requested instruction. 3. SAME-CREDIBILITY OF WITNESSES.

Defendant was entitled to an instruction as to the duty of the jury to consider the admissions of an adverse witness in testifying that such witness had committed crimes, or sustained protracted illicit relations, for the purpose of determining her credibility.

[Ed. Note.--For cases in point, see vol. 14, Cent. Dig. Criminal Law, 88 1889, 1890.)

Appeal from Circuit Court, Allen County; Jno. M. Smith, Special Judge.

Charles W. Dunn was convicted of murder in the first degree, and he appeals. Reversed.

Henry Colerick and Barrett & Morris, for appellant. C. W. Miller, Atty. Gen., Samuel M. Hench, W. C. Geake, L. G. Rothschild, C. C. Hadley, Ronald Dawson, and E. V. Emrick, for the State.

GILLETT, J. Appellant seeks the reversai of a judgment convicting him of murder in the first degree. This is the second appeal. See Dunn v. State (Ind. Sup.) 67 N. E. 940, 70 N. E. 521. The error assigned calls in question the overruling of a motion for new trial.

It was the theory of the state, stated in its boldest outlines, that appellant choked the deceased, a girl of 10, to death, in his barn, as the result of an effort to commit on outrage upon her person, and that he afterwards carried her body to his house, and threw it, through an opening in the kitchen floor, into a cistern. Both as to the corpus delicti proper and appellant's guilty agency in connection therewith, the state relied on circumstantial evidence. Upon many points there was conflict in the testimony. In the disposition of the appeal we shall, in the main, confine our attention to the action of the court in refusing to give two instructions, tendered by appellant, and numbered, respectively, 13 and 16. Said instructions are as follows: "(13) In a case like this, where the evidence is all circumstantial, it is necessary, before there can be a conviction, that every necessary link in the chain of circumstances must be proven beyond all reasonable doubt, although some of the circumstances may be clearly proven beyond all reasonable

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doubt, yet if other necessary circumstances of the word "link" the figure of speech beare not proven beyond all reasonable doubt, comes misleading, since the integrity of the then you should acquit the defendant.” “(16) chain depends upon the resisting power of If any one fact, necessary to a conclusion of the weakest link, unaided by any other. It guilt, is wholly inconsistent with the hypothe- is true that the absence of the smallest link sis of the guilt of the accused, it breaks the in the chain of evidence may so break the chain of circumstantial evidence upon which connection as to create a fatal weakness in the inference of guilt of the accused depends, the state's case, depending upon its nature and, however plausible or apparently con- and the character of the other facts, but it clusive all other circumstances may be, the is obvious that an instruction should not be charge must fail and you should acquit the given which would have a tendency to lead defendant."

the jury to infer that each and every subThe purpose of the introduction of circum- sidiary fact must be proved beyond a reasonstantial evidence is so strongly to establish able doubt, or that a strain upon any one of the probability of the existence of a fact as them above the breaking point would necesto warrant the assumption of its existence. sarily destroy the whole fabric of the eviIt is evident, however, that, as a working dence. Wade v. State, 71 Ind. 535; Hinshaw tool, the most that can be expected of such v. State, 147 Ind. 334, 47 N. E. 157; 1 Blashevidence is the attainment of moral certainty. field, Instructions, $$ 320, 321, and cases Where there is a distinct paucity of fact in cited. There must in a substantial sense be the evidence, the result ordinarily is that a chain of facts, connecting the crime with nothing more than a conjecture or suspicion the criminal, which is sufficient to establish is generated, but as the introduction of the guilt to a moral certainty, but, apart from the testimony involves, in a greater or less de- preliminary process of comparison which the gree, the effort to reconstruct the case from consideration of circumstantial evidence the very elements which before composd it, ought to involve, it is evident that ultimately it is evident that as the number of coinci- the question as to whether the circumstances dences increase, both with respect to pre- require that conclusion must depend upon vious experience and with respect to each their force when held in combination. Burother, these primary facts may form a body rill, Cir. Ev. (2d Ed.) 80, 130, 179. Subject or chain of facts, which, by reason of its to this explanation, we are prepared to recompleteness and the extent to which the affirm the declaration of this court, in Sumfacts sanction each other, is sufficient to ner v. State, 5 Blackf. 579, 36 Am. Dec. 561, eliminate every other reasonable hypothesis that, “the party upon whom the burden of than that of guilt. “The slightest possible proof rests, is bound to prove every single presumption, often repeated,” says Butler, in circumstance which is essential to the conthe introduction to his Analogy, "will amount clusion, in the same manner and to the same to a moral certainty." It is, or should be, extent as if the whole issue had rested upon the effort of the prosecutor to prove all of the the proof of each individual and essential known surrounding facts, so that the body circumstance." of the charge may as far as possible be artic- It has seemed to us not inappropriate, alulated. It will often be found, however, though we have been unable to sanction apwhere the facts are numerous, that evidence pellant's instruction No. 13 as a correct exis wanting of some fact necessary closely to position of the law, that we should consider connect the facts involved in the hypothesis, the proposition therein involved, since the inbut questions of this kind can only be dealt struction afforded a basis for some statement with in the concrete; whether the want of as to the manner in which a hypothesis may direct evidence upon a fact involved in the be established; but in passing to appellant's assumption ought to produce an acquittal, is instruction No. 16, which the court refused a question which must, in many cases, ad- to give, it is evident that we have to deal dress itself to the good sense of the jury, with the obverse side of the question. As subject to the revisory power of the trial we have already pointed out, the manner of court, the result depending largely upon raising a presumption to a basis of such whether there is a real rather than a seeming high probability as to justify a jury in actbreak in the connection, thus leading to the ing upon it as a fact in a matter involving possibility of innocence. It is vital in such life or liberty, is a process. While the prosea case to consider the extent, if at all, that cutor may not be called on to account for the surrounding facts may be said to press every fact which the evidence discloses, and on to the conclusion which the hypothesis of while he may in many cases rely upon the the state involves. In view of the manner in composite effect of his evidence in establishwhich facts may act upon each other, both ing his hypothesis, yet it is evident that by way of supplying omissions in the direct where some fact necessary to a conclusion evidence and strengthening weak testimony, of guilt stands out in contradiction to the we are of opinion that the court ought not to facts which afford the basis for his general inform the jury that every necessary link in assumption, the matter necessarily resolves the chain of circumstantial evidence ought itself into a weighing of probabilities, and in to be proved beyond a reasonable doubt. Our such circumstances it cannot be said that reason for this conclusion is that in the use the evidence shows, by exclusion, that the

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defendant is guilty. The facts in the case that the instruction in question was covered
should be tested by the assumption of inti0- by certain general instructions, in which it
cence as well as of guilt, and where the jury was declared, among other things, that to
reaches the ultimate conclusion that a fact | justify a conviction upon circumstantial evi-
exists which is necessarily inconsistent with dence the circumstances "must all be in har-
the latter assumption, the defendant must be mony with the guilt of the accused," that in
given the benefit of the doubt. In substance such a case the jury must “be satisfied that
the language of the instruction in question all the circumstances proved are consistent
is found in the opinion of Shaw, C. J., in the with the defendant having committed the
leading case of Com. v. Webster, 5 Cush. act," and "must also be satisfied that the
(Mass.) 295, 52 Am. Dec. 711, and this state- facts are such as to be inconsistent with any
ment of the law was used by Mitchell, J., as other rational conclusion than that the defend-
an appropriate declaration of the legal princi- ant is the guilty person." It is the right of a
ple, in Cavender v. State, 126 Ind. 47, 25 N. party charged with crime to insist, if he ten-
E. 875. “It is essential,” observes Starkie, ders proper instructions, that the court shall
"that all facts should be consistent with the instruct the jury on all legal questions neces-
hypothesis. For as all things which have sary to enable it to reach a correct verdict,
happened were necessarily congruous and con- Parker v. State, 136 Ind. 281, 35 N. E. 1105.
sistent, it follows that if any one established There is a right to have given an instruction
fact be wholly irreconcilable with the hypoth- which contains a specific application of a rule
esis, the latter cannot be true. Such incon- of law to the evidence. Fahnestock v. State,
gruity and inconsistency is sufficient to nega- 23 Ind. 231; Carpenter v. State, 43 Ind. 371;
tive the hypothesis, even though it coincide Hipes v. State, 73 Ind. 39; Woolery v. Lou-
and agree with all the other facts and cir- isville, etc., R. Co., 107 Ind. 381, 8 N. E. 226,
cumstances to the minutest extent." Ev. star

57 Am. Rep. 114; McCormick v. Smith, 127 page 506. In Mr. Burrill's valuable work

Ind. 230, 26 N. E. 825. In Fleming v. State, on Circumstantial Evidence, we find him

136 Ind. 149, 36 N. E. 154, where the defendcontinually cautioning against precipitancy ant relied on evidence of an alibi, it was in the mental process, not only that inconsist- held that it was error to refuse to instruct ent facts may be observed, but that it may that a reasonable doubt might arise from a be perceived whether the evidence concern- consideration of the alibi evidence, although ing them is true or can be reconciled. Circ. Ev. the court had given a general instruction upon (2d Ed.) 33, 85, 153, 181, 192, 207. Under the

the subject of reasonable doubt. The instructhird fundamental rule declared by him, that tions given by the court in this case failed to “the hypothesis of delinquency or guilt should

bring out an undoubted legal proposition into flow naturally from the facts proved, and be

the bold relief that it was entitled to, and consistent with them all,” Mr. Burrill states: they were not so well calculated, as the in“By this rule, the attainment of three import-struction tendered, to lead the jury to underant objects (all of them indispensable condi- stand that the inferential process is largely tions of accuracy in the conclusion proposed), one of comparison. Indeed, it is clear that, , is secured; namely, an examination of all

under the instructions given, the jury would the facts of the case; an examination of

be more likely than they would otherwise them, free from bias or prejudice; and an ex- have been to reject a possible important fact amination of the case on both of its sides, or as inconsistent, rather than abandon a hypothin its aspects of favor as well as disfavor to esis that, in other respects, might have seemthe accused. Its practical effect is to prevent ed to its members to be well maintained. precipitancy in the inferential process, and We do not think that, in a case of this nato combat what is often the tendency of the ture, involving life and liberty, we mistake mind to jump at conclusions, when under the our duty in holding, since a proper instruction influence of impressions derived from a few was tendered, that appellant was entitled to prominent facts, without examining all the a specific statement of the well-known docfacts of the case, and allowing them every trine concerning what Bentham terms the interpretation which they will reasonably ad- "disprobabilizing fact.” 3 Rationale Jud. Ev. mit. The process is to be a natural one, 13. Because of the failure to give said inwithout the use of any mental violence in struction, the cause must be reversed. We straining facts beyond their real significance, may state, in passing, that we are impressed of adapting them, in any degree, to precon- with the view that appellant was entitled, ceived opinions. By requiring the hypothesis in the circumstances of this case, had he askof guilt to be consistent with all the facts, ed it, to an instruction as to the duty of the the rule secures to the proposed conclusion jury to consider the admissions of a witan essential element of truth, while allowing ness, in testifying, that such witness had all due weight to the supposition of possible committed crimes, or had sustained protracterror; and prominently recognizes the exist- ed illicit relations, for the purpose of deterence of that opposite side (contrarium), which mining whether the credibility of the witness is contemplated and embodied in the great was thereby impeached or the testimony of fundamental maxim of presumption from such person impaired. It is our opinion, howfacts.” Circ. Ev. (2d Ed.) 735.

ever, that the instructions tendered on that It is contended by counsel for the state subject were properly refused, since they

were too much calculated to lead the jury to infer that, in the court's view, the witness ought not to be believed,

Judgment reversed, and a new trial ordered. The clerk will issue the proper order for the return of the prisoner.

Southern Railway Company and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

A. P. Humphrey, Jno. D. Wellman, and M. W. Fields, for appellant. W. E. Cox, R. W. Armstrong, and S. H. Esardy, for appellee.

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(38 Ind, A. 211) SOUTHERN RY. CO. et al. v. ROACH.

(No. 5,685.) (Appellate Court of Indiana, Division No. 2.

June 7, 1906.) 1. APPEAL-PRESENTATION OF QUESTIONS IN LOWER COURT-MOTION FOR NEW TRIAL.

Any error in overruling a petition to remove a case to the federal court is not avail. able on appeal, where it was not made a reason for a new trial. 2. CARRIERS INJURIES TO

PASSENGER PLEADING-INCONSISTENCY OF AVERMENTS.

In an action for injuries to a person accompanying a shipment of horses, inconsistency in averments of the complaint in alleging that the train left the track by reason of rotten and defective ties permitting the rails to spread, and that the breaking of the axle of a car caused the train to leave the track, does not make the complaint bad.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 127542.) 3. SAME-DEFINITENESS.

In an action for injuries to a person accompanying a shipment of horses, an allegation that the railroad company maintained a switchyard in a certain city and kept a car inspector whose duty it was to inspect all cars and trains passing through that yard, though failing to specifically state that the train in question passed through that yard, did not render the complaint bad. 4. SAME — WHO ARE PASSENGERS ASSUMPTION OF RISK.

One who, being the agent of the owner of horses, rode on the freight train on which they were shipped, was a passenger, and did not assume the risk of injury from negligence of the carrier.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 980.] 5. SAME-PLEADING-DEFINITENESS.

In an action for injuries to one who accompanied a shipment of horses, an allegation that he was on the train at the time of the accident, was a sufficient statement as to where he was, in the absence of a motion to have the complaint made more definite. 6. APPEAL-PRESENTATION OF OBJECTIONS IN

COURT BELOW — PLEADING – COMPLAINT SUFFICIENCY.

Where there is no essential averment missing from a complaint, and it is sufficient to bar another action for the same injury, it is sutcient where it is first attacked on appeal.

[Ed. Note.--For cases in point, see vol. 2, Cent. Dig. Appeal and Error, $s 1226–1240.] 7. CARRIERS-INJURY TO PASSENGER - CON

TRIBUTORY NEGLIGENCE – TRIAL — SPECIAL FINDINGS.

In an action for injuries to a passenger on a freight train, special findings that he was riding in the cupola of the caboose at the time of the accident, that there were seats in the caboose, that the cupola was for trainmen only, and that he got off before the caboose stopped, did not show him guilty of contributory negligence.

Appeal from Circuit Court, Dubois County; Eugene A. Ely, Judge.

Action by John L. Roach against the

WILEY, J. Appellee recovered a judg. ment in the court below against appellants for injuries sustained by him on account of their alleged negligence. The cause was put at issue, and tried upon the amended first paragraph of complaint. The appellant, the Southern Railway Company timely filed its petition and bond to remove the cause to the Circuit Court of the United States for the district of Indiana, on the ground of diverse citizenship and separable controversy, it being a foreign corporation, and a citizen of Virginia. This motion

This motion was overruled. Joseph Steinhart was made a codefendant, but the jury found in his favor. Neither of the appellants moved for a new trial. The jury, with their general verdict, answered interrogatories submitted to them, and appellants each moved for judgment on such answers, notwithstanding the general verdict. These motions were overruled. The errors assigned are: (1) Overruling the petition to remove. (2) That the complaint does not state facts sufficient to constitute a cause of action. (3) Overruling the motion for judgment on the answers to interrogatories.

The error, if any, in overruling the petition to remove the case to the federal court, is not available on appeal, because it was not made a reason for a new trial. It is here made an independent assignment of error, and under the holding in the recent case of Southern Railway Co. v. Sittasen (Ind. Sup.; decided March 6, 1906) 76 N. E. 973, this is not sufficient to present the question.

There are three acts of negligence charged: (1) Failure to inspect; (2) rotten and defective cross-ties, that would not bold the spikes, by reason of which the rails spread and gave way, throwing the train violently from the track; and (3) running a heavy freight train over such defective track, and at a high and dangerous rate of speed. It is charged that appellants engaged, for a fixed consideration, to carry from one point to another on "the line of its railway, plaintiff and one car load of horses," which horses were the property of Peter Schnell; that appellee was the agent of Schnell, and took passage on the car to take care and control of said horses and was carrying at the time a "shipper's pass,” which was given him in consideration of said hire for carrying the car of horses. Then follows the averments in regard to the rotten ties, defective joints, spreading of the rails, and the derailment of the train. It is then charged that appellants were negligent in failing to inspect “the car axle on one of the cars

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that made up said train, and they carelessly suffered and permitted said car to remain in said train, with a defective and broken axle”; that if appellants had examined said car, as it was their duty to do, “at the city of Huntingburg, Ind., * * * said defendants could and would have discovered said defective and broken axle"; that by reason of said carelessness and negligence on the part of appellants, "said axle broke down, and caused the train to leave the track,” etc., by which appellee was injured. There is an inconsistency in two of the averments of the complaint in this, viz.: It is first alleged that the train left the track by reason of the rotten and defective ties, which would not hold the spikes, thus causing the rails !0 spread, by reason of which the train left the track; and second, it is charged that the breaking of the axle caused the train to leave the track. We cannot, however, hold that this inconsistency makes the complaint bad.

The principal objection urged to the complaint is that it alleges that it was appellants' duty to inspect the car at Huntingburg; that Dienhart, one of the defendants below, was appellants' servant, charged with that duty, and that there is an entire absence of an allegation that the car was ever at Huntingburg. In this regard, as far as the complaint goes, is to charge that appellants "did keep and maintain a switchyard in the city of Huntingburg,

* * * and keep and maintain a car inspector," whose duty it was to inspect all cars and trains that pass in and through said yard. While these allegations do not in terms state that the train or car upon which appellee was riding, passed through said yards, yet we cannot say the complaint is bad for that reason. The complaint, in this regard, might have been made more specific, if a motion to that effect had been made.

Another objection is that the complaint shows that appellee took passage on the car containing the stock, and this being true he assumed the risk, and hence cannot recover. This point is not well taken. Under the facts pleaded appellee must be regarded as passenger for hire. Lake Shore, etc., Ry. Co. v. Teeters (Ind. App.) 74 N. E. 1014; Lake Shore, etc., Ry. Co. v. Teeters (Ind. Suj.; at this term) 77 N. E. 599; Ohio, etc., Ry. Co. v. Selby, 47 Ind. 471, 17 Am. Rep 719; Ohio, etc., Ry. Co. v. Nickless, 71 Ind. 271; Louisville, etc., Ry. Co. v. Faylor, 126 Ind. 126, 25 N. E. 869; Delaware, etc., Ry. Co. v. Ashley, 67 Fed. 209, 14 C. C. A. 368; Waterbury v. New York, etc., Ry. Co. (C. C.) 17 Fed. 671; New York, etc., Ry. Co. v. Blumenthal, 160 Ill. 40, 43 N. E. 809; Evansville, etc., R. Co. v. Mills (Ind. App.; present term) 77 N. E. 608.

It is finally argued that the complaint is bad because it does not show any connection between the accident and the injury, in that it does not show where appellee was at

the time of the accident. It is shown that he was riding on the train at the time of the accident, and if appellants desired the complaint to have been more specific they could have done so by motion. The complaint is attacked for the first time in this court. There is no essential averment missing. The complaint is sufficient to bar another action for the same injury. This is sufficient where the attack is made for the first time on appeal. Xenia Real Estate Co. v. Macy, 147 Ind. 568, 47 N. E. 147; Efroymson v. Smith, 29 Ind. App. 451, 63 N. E. 328; Cleveland, etc., Ry. Co. V. Baker, 24 Ind. App. 152, 54 N. E. 814; Bertha v. Sparks, 19 Ind. App. 431, 49 N. E. 831; City of South Bend v. Turner, 156 Ind. 418, 60 N. E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200; Town of Knightstown v. Homer (Ind. App.) 75 N. E. 13.

The remaining question for consideration is that presented by the action of the court in overruling the motion for judgment on the answers to interrogatories. If the facts specially found are in irreconcilable conflict with the general verdict they will control, and in such event it is error to overrule such motion. By the general verdict the jury found and determined all material facts in appellee's favor. Such finding establishes that appellants were guilty of one or more of the acts of negligence charged, and hence such finding was within the issues tendered by the complaint. The verdict also included a finding that appellee was without fault.

It is urged that the answers to interrogatories affirmatively show that appellee was guilty of contributory negligence, that by reason thereof they are in irreconcilable conflict with the general verdict, and hence appellant's motion for judgment should have been sustained. The facts, as exhibited by tue answers to interrogatories upon which appellants base this contention are as follows: That appellee was riding in the cupola of the caboose at the time of the accident; that this seat was five or six feet above the floor of the caboose; that there were seats in the caboose; that the cupola was for trainmen only, and the seats below was the usual and proper place for appellee; that the caboose and even or eight cars in front of it remained on the track attached together; that the doors of the caboose were shut; that the appellee got off before the caboose stopped; that the track under these cars was in good repair, and undisturbed by the wreck. We are unable to see anything in the facts thus disclosed to indicate that appellee was guilty of contributory negligence. It is not made to appear that riding in the cupola of the caboose, or his getting out of it before the train stopped, had anything to do with his injury. Taking the facts specially found as a whole, they tend strongly to support, rather than to contradict, the general verdict.

Judgment affirmed,

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