79 N.E. 1076 (Ind. 1907)
Appellant stands convicted of murder in the first degree.1 He appealed from the judgment, assigning error on the overruling of his motion for a new trial.2
As a witness in his own behalf, appellant offered testimony tending to show a killing in self-defense.3 He afterwards testified that before the killing he had heard that the deceased, who was the marshal of Hagerstown, had clubbed and seriously injured an old man in arresting him, and that the old man died a short time afterwards.4 On cross-examination, when asked who told him this, he answered that some people around Hagerstown had told him but he could not say who it was now.5
On rebuttal the state was permitted to prove by a physician that the old man died of senility and alcoholism and that there were no bruises or marks on his person.6 Appellant objected and excepted to the admission of this testimony.
Appellant tendered instruction No. 3 stating that every individual member of the jury must act upon his own responsibility and no one is bound by the conclusion of the majority if such conclusion does not agree with his own.7 The court refused this instruction but gave its own instruction that each juror should act for himself and form his own judgment uninfluenced by and independent of the judgment of others.8
Appellant also tendered instructions 28 and 29, which the court refused.9 He further tendered instruction No. 5 stating that if the jury believed any witness was intoxicated at the time of the facts testified to, the jury could consider that fact in weighing the testimony and determining the effect of intoxication on the witness's recollection.10 The court likewise refused instruction No. 5.11
Whether the trial court erred in admitting rebuttal testimony from a physician that the old man died of senility and alcoholism with no bruises or marks on his body?12
Relevancy is that which conduces to the proof of a pertinent hypothesis.13 The competency of a collateral fact to be used as the basis of legitimate argument is not to be determined by the conclusiveness of the inferences it may afford in reference to the litigated fact.14 It is enough if these may tend in a slight degree to elucidate the inquiry.15
No. Appellant testified he had heard that the deceased had clubbed and seriously injured an old man in arresting him and that the old man died a short time afterwards.16 On rebuttal the state proved by a physician that the old man died of senility and alcoholism and that there were no bruises or marks on his person.17 This evidence tended to negative the claim of appellant as to what he had heard.18 Truth-speaking preponderates.19
To show that there was no basis in fact for the statement made it less probable that his testimony on this point was true.20
The trial court did not err in admitting the rebuttal testimony.21
Whether the trial court erred in refusing appellant's tendered instruction No. 3 on each juror's individual responsibility and instead giving its own instruction on juror independence?22
No. Appellant's tendered instruction No. 3 stated that every individual member of the jury must act upon his own responsibility and no one is bound by the conclusion of the majority if such conclusion does not agree with his own.25 The court refused this instruction but gave its own instruction that each juror should act for himself and form his own judgment uninfluenced by and independent of the judgment of others. The instruction given contained the essential elements of the point on which appellant sought to have the court instruct the jury.26
The trial court did not err in refusing appellant's tendered instruction No. 3.27
Whether the trial court erred in refusing appellant's tendered instructions 28 and 29?28
While a juror should refuse to join in a verdict of guilty so long as he entertains a reasonable doubt as to the guilt of the defendant, yet an instruction would be improper which was calculated to lead a juror to infer that the mere entertaining of a reasonable doubt, after carefully weighing the evidence and full consultation, amounted to a limitation upon the right of the juror to join in a verdict of guilty.29 Fuller deliberation and consultation might clear away the juror's doubt.30
No. Appellant tendered instructions 28 and 29 which the court refused.31 These instructions were erroneous.32 They were calculated to lead a juror to infer that the mere entertaining of a reasonable doubt, after carefully weighing the evidence and full consultation, amounted to a limitation upon the right of the juror to join in a verdict of guilty.33 Fuller deliberation and consultation might clear away the juror's doubt.
The trial court did not err in refusing appellant's tendered instructions 28 and 29.34
Whether the trial court erred in refusing appellant's tendered instruction No. 5 directing the jury to consider witness intoxication when weighing testimony?35
It is not error to refuse an instruction unless it ought to be given precisely in the terms prayed.36 The teachings of experience on questions of fact are not doctrines of law which may be announced as such from the bench.37 The effect of intoxication upon the perceptive faculties is so well understood that no one has occasion to be instructed upon it.38
No. Appellant tendered instruction No. 5 stating that if the jury believe from the evidence that any of the witnesses were intoxicated at the time of the facts about which they testified, the jury may consider this fact in weighing the testimony of such witnesses.39 The subject-matter of the instruction had so far to do with matters of fact that it might properly be refused.40 The court gave a general instruction informing the jury that they had a right to consider the opportunity that a witness had of knowing and understanding the things about which he testified.41
The trial court did not err in refusing appellant's tendered instruction No. 5.42