The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-02-28
WAGNER MUST GO TO PRISON
He Is Found Guilty of the Charge of At
tempting to Murder His Mistress,
ment-His Attorneys File Motion for
New Trial-Litigation of Various Kinds.

The argument in the trial of John Wagner,
charged with attempting to murder frankie
Howe, his mistress, in August, 1856, occupied
all the forenoon in the Criminal Court yester-
day. States Attorney Mitchell spoke two hours
in behalf Of conviction, and was followed by
attorney Cropsey for the accused. The argu-
ment closed at II o'clock by Assistant
States Attorney Hoffman. The argument on
both sides very able. The instructions to
the jury were not submitted by Judge Irwin
until the reassembling of court at o'clock His
charge was unusually lengthy, and covered mi
nutely all the points in the case. Taken as an
entirety. what he said to the jury was favorable
to the accused AS the attorneys for Wagner
asked for his acquittal on the ground OF insanity
at the time of shooting. brought on by excess
i've drink. the judge devoted considerable atten-
Aion to that feature of the case, in speaking of
which he said:
Mental incapacity. produced by voluntary
intoxication, existing only temporarily. but at
the time of the com mission of the offense. is no
excuse for crime, nor defense to a prosecution
therefor But when the habit of intoxication,
though voluntary, has been long continued, and
has produced disease, which has perverted or
destroyed the mental faculties of the accused.
SO that he was incapable at the time of the COM
mission of the alleged crime of acting from mo-
tive, or distinguishing right from wrong-in
short, inssne-he will not be hold responsible
for the act charged as a crime 1t Is
not every slight alteration of the mind;
not every of slight mental derange-
Enent that will excuse person for act In vlo-
lation or the law When there is mental capacity
sufficient to comprehend the nature and cOnse-
quences OF such an act and unmpaired will
power strong enough to master an impulse to
commit crime, there is criminal responsibility.
When delirium tremens il set up o Defense
the delirIum must have existed at the time the
act was committed. az there is presumption
OF its existence from antecedent fits from which
the party has recovered, for this is a mers
transient arrangement of the mind. and there is
no presumption OF its recurrence or contlnu-
ance'
In concluding the Judge said that the fact that
the defendant did not GO on the witness-stand
in his own behalf not to be commented
upon by the jury or taken into consideration in
returning verdict. He also said that in case
the defendant should be found guilty, the fact
that he had spent some time in the county Jail
after being indicted should be considered in fix
ing his punishment
The jury retired at fifteen minutes before
o'clock. and in half an hour sent down word that
verdict had been agreed upon. The jury was
brought down and submitted the following YER
diet:
We, the jury find the defendant guilty, and for
his punishment 81 fine, five years imprisonment in
the penitentary and Acknowledgement for five
The defendants attorneys took exceptions to
the last clause of the verdict, and the foreman
of the jury authorized the clerk to erase It. The
verdict WAS changed in accordance with the
legal form, but the defendants attorneys gave
notice that they would apply for new trial on
the ground that the verdict irregular, and
that it had been changed after being presented
to the court. The judge requested that the mo-
ton be submitted In writing, and said he would
set time to hear argument on IL.
The verdict was much more severe than was
anticipated. but Wagner did seem to be
affected by it. He was taken into custody by
the sheriff and committed to Jail. IF new trial
Is not secured the case will be taken to the SUI
preme Court While Wagner is not financially
able himself to make vigorous effort for a
versal of the decision, he has great many
friends who propose to assist him.