Dobbs v. State , 237 Ind. 119 ( 1957 )

Bobbitt, J.

Appellant was indicted for murder in the first degree, tried by jury, found guilty of murder in the second degree, and sentenced to the Indiana State Prison for life.

Two questions are presented for our consideration.

First: Appellant asserts that the trial court erred in excluding, on motion of the State, the testimony of two witnesses as to the general reputation of defendant-appellant for peace and quietude in the community in which he lived.

Eight other witnesses testified that the reputation of the defendant-appellant for peace and quietude in the community where he lived was good. The testimony of the two witnesses which was stricken out by the court on motion of the State was merely cumulative on the fact of appellant’s general reputation for peace and quietude.

It has long been the law in this State that the number of witnesses who may be called to prove a single issue of fact is within the sound discretion of the trial court and, while such discretion may be reviewed, the exclusion of such evidence will not constitute reversible error unless a clear abuse of discretion is shown. Chappel v. State (1926), 197 Ind. 272, 276, 150 N. E. 769; Butler v. The State (1884), 97 Ind. 378. See also: 21 A. L. R. Anno. 1 (a), p. 335; 48 A. L. R. Anno. 1(a), p. 948.

Professor Wigmore in §1908, p. 580, Vol. 6, 3d ed., Wigmore on Evidence, states the rule as follows:

“The value of character-evidence, impeaching or sustaining a party or a witness, is commonly much exaggerated (ante, §§920, 1611). Its comparative futility in the ordinary case, and its tendency to degenerate into a mere exhibition of petty local jealousies and animosities, of no real probative service, have induced the Courts to concede unanimously that the number of character-witnesses may without disadvantage be limited, as the trial Court may prescribe.”

Even if the testimony of the two witnesses was admissible, the action of the trial court in sustaining the motion to strike was not reversible error under the rule as stated in 24 C. J. S., Criminal Law, §1918, p. 1000, as follows:

“No prejudicial error results from the erroneous exclusion of admissible evidence, where the facts sought to be proved thereby are clearly established by other evidence admitted before or after the erroneous exclusion.”

Under the circumstances as shown by the record herein, where the evidence as to appellant’s good reputation as given by eight witnesses is dieted, we cannot say that appellant was injured by the exclusion of similar testimony of two additional witnesses. Hengstler v. State (1934), 207 Ind. 28, 37, 189 N. E. 623; 23 C. J. S., Criminal Law, §1041, p. 428, §1042, p. 429.

It has also been held in a number of jurisdictions “that the trial court, in the exercise of a reasonable discretion, may stop the further introduction of cumulative testimony when it is satisfied that the point in dispute has been thoroughly presented, and that further testimony on the point will be of no assistance in arriving at a conclusion as to the truth.” 21 A. L. R., Anno. p. 349.

The State introduced no evidence as to appellant’s reputation. Hence, the testimony of eight witnesses as to his good reputation went to the jury un disputed and unchallenged. Under these circumstances there was no abuse of discretion in striking out the testimony of the ninth and tenth witnesses and thus limiting the number of witnesses on this fact. Sanders v. State (1940), 216 Ind. 663, 666, 25 N. E. 2d 995.

Second: Appellant further asserts that the verdict of the jury is contrary to law because (1) the evidence was insufficient to show that the killing was maliciously done, and (2) defendant-appellant was intoxicated at the time the crime was committed to such an extent that he was incapable of forming the intent necessary to commit murder in the second degree.

(1) Appellant admits that “It is true there is some evidence to the effect that appellant fired the fatal shot.” When arrested some three hours after the shooting appellant told the police officers where he threw the gun and went with them and pointed out the spot where the gun containing one empty shell and five loaded ones was found. Appellant admitted to the police that he had shot the victim.

From the evidence as it appears in the Bill of Exceptions the jury could reasonably have concluded that a deadly weapon was used by appellant in such a manner as likely to cause death, and from this malice could have been inferred. Haley v. State (1956), 235 Ind. 333, 133 N. E. 2d 565, 566.

(2) Drunkenness is no excuse for the eom mission of a crime. Booher v. State (1901), 156 Ind. 435, 440, 60 N. E. 156, 54 L. R. A. 391.

The intoxication of a person on trial on a criminal charge which involves a specific actual intent, may be admitted and considered in his behalf. However, it is not admissible “upon the ground that it of itself excuses or palliates the crime, but is admitted and considered only for the purpose of ascertaining the condition of the mind of the accused, in order to determine whether he was incapable of entertaining the specific intent charged, where such intent, under the law, is an essential ingredient of the particular crime alleged to have been committed; ... In all criminal cases where the intent of the accused is an essential element, such intent becomes a question of fact to be determined by the jury or court trying the case upon a consideration of all the evidence.” Booher v. State, supra (1901), 156 Ind. 435, 446, 60 N. E. 156, 54 L. R. A. 391.

The specific intent of appellant herein to commit the crime charged in the indictment was an essential element of the offense, and the existence or nonexistence of such malicious intent was a condition of fact to be determined by the jury from all of the evidence. Booher v. State, supra, at pp. 448, 449 of 156 Ind.; Aszman v. The State (1890), 123 Ind. 347, 24 N. E. 123, 8 L. R. A. 33.

An intent to kill might properly have been inferred from the circumstances of the case or from the use of the gun by appellant in such a manner as to be reasonably calculated to cause death. Larkin v. State (1904), 163 Ind. 375, 71 N. E. 959; Walker v. State (1894), 136 Ind. 663, 669, 36 N. E. 356.

In our opinion there was sufficient evidence from which the essential element of felonious intent might have been inferred. The burden was upon appellant to show reversible error. This he has failed to do.

Finding no reversible error the judgment of the trial court must be affirmed.

Judgment affirmed.

Arterburn, C. J., Landis and Achor, JJ., concur.

Emmert, J., dissents with opinion.