The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-10-17
MUST SERVE HIS TIME
WINNIE SMITH CASE AFFIRMED BY
THE SUPREME CouRr.
Opinion shows that the
instructions Of the Lower Court
Contained No Errors.

Inc supreme court yesterday affirmed the
decision OF the Marion Criminal Codrt in
the case of Winnie Smith. charged with the
murder OF Western B. Thomas. The opinion,
by Chief Justice Howard. is as follows:
a appellant yas indicted for murder
IN the nrst degree, for the killing of West
- 20. tnomas: On the trial he was found
suity OF ma~nslaughter, and was sentenced
70 imprisonment in the States prison for
eighteen years.
tne oyerruling OF the motion for a new
triai- Under this assignment il IL first con-
tendeu That the court erred IN giving TO the
jury. OF Its own motion, instruction No. 20.
The instruction reads as follows:
III you believe from the evidence that
any witness, before testifying in : as case,
mas made any statements out OF court con-
terially different and at variance with what
ne or she has stated on the witness stand.
men the jury are instructed by the court
recollection or the truthfulness of the wit
ness, and the jury should consider these
Iacts In estimating the weight which ought
t5e De given to his or her testimony, and If
ene Jury peiieve from the evidence that the
morai character of any witness or witnesses
nave been successfully impeached on this
s G,ai tnen that fact should also be taken
into consideration In estimating the weight
which ought to be given to the testimony of
such witness or Witnesses
~ Is objected that, in giving the first
p Vade ;pi t fee p 5nssfnssi0 of the the e iary. e as fG the ine
weight 10 be given to evidence, by telling
the Jurors. as a matter of law. what certain
e evlaeacs tended TO prove, And a dictum is
quoteu from Guetig VS.. State (3 Ind, 2S2),
10 the effect that What evidence proves or
tends to prove, after 1T has gone TO the jury.
- = question solely for the jury TO decide;
II IS error for the court to interfere with
their decision upon the weight of evidence
by an instruction.
In the Guetig case there was evidence
prove that the appellant was subject to at
tacks OF epilepsy. There was In that case,
also. evidence tending to show that epilepsy
Is a disease which tends TO produce insan-
lily. The insanity of the appellant was
urged as his main defense. Under these
circumstances the court instructed the Jury
In that case that This evidence would not
appellants sanity at the time OF the alleged
commission of the homicide The instruc-
ton was condemned by this court because
wh, otreetiy states that certain evidence
suInclept TO prove a certain fact, or to raise
a reasonable doubt Of a certain fact There
can be no question that the ruling so made
charged the jury as to what weight
they should give TO the evidence. That is a
matter exclusively within the province Of
the jury. The decision In that case, how
ever, goes no farther, and we do not think
1T is authority on the point now before US.
The evidence referred to in the ~instruc-
ton In the case at bar was concerning
statements made by a witness out of court
materially different from those made by the
witness In court. As to such evidence of
statements made out of court. the words OBJ
Jected TO In the instructions are: The jury
are instructed by the court that these facts
tend to impeach either the recollection or
the truthfulness of the witness. and the
Jury should consider these facts in estimat-
MS or her testimony
I'VE think the plain intent of this clause
OF the instruction was TO inform the jury as
to the character or tendency of the evidence
IN question, namely-that IL was impeach-
ing; In other words. that its introduction
was allowed because It tended to impeach
establish any issue in the case. The mani
rest purpose of the instruction was, there
lore, 10 point out the nature of the evil
dsnce and to limit the consideration to
This was strictly the province of the
court: indeed, the court, in the very act Of
permitting the introduction OF any item of
evidence, must OF necessity pass upon its
tendency. If the evidence Offered does not
TEND TO prove any material issue In the
case, or TO impeach a witness, or to serve
any other legitimate purpose Of the trial,
weighing the evidence. but ii is passing
Judgment upon the tendency, character or
purpose OF the evidence.
While the jury are the sole judges of the
facts, and also nave the right in Criminal
cases to determine the law (Sec. 1892 r. s..
1884; Sec: 1923 r. s. 1850. yet, by the same
the jury as to the law, and also hat in
charging the jury he must state to them all
the matters OF law which are necessary for
their Information in giving their verdict.
II was certainly necessary for the infor-
nation OF the jury that they should be told
the nature OF the testimony referred to:
namely, that 1t was impeaching-that it was
case, but solely tended TO fmpeach either
the recollection or the truthfulness of the
witness Otherwise. and had the ~instruc-
thought it their duty to apply the evidence
TO the issues In the case. II was thus in the
interest OF appellant himself. as we'll as of
the State, that the jury should be informed
dence was solely to discredit a witness. and
not to establish any issue, either for or
against either party.
THE s OF IMPERATIvES.
1T Is also claimed to be error that the
court charged that the jury should CON-
slider the impeaching evidence introduced
in estimating the weight which ought to be
given to the testimony OF a witness. and
should also. for the same purpose. take into
consideration the fact, IL they should so find
1t, that the moral character of any witness
had been successfully impeached. We do
not think that in making this charge the
court invaded the province of the Jury. II
cannot be doubted that. under the law. il
Is the duty of the jury to consider ali evil
dence introduced on the trial and not with
drawn by the court. The evidence is intro
duced Tor that very purpose, namely-that
TX may be considered for what N is forth
what weight, II any, the jury NAV give Ia
any item OF evidence is tor them to saw.
put they are not justified in failing to give
consideration to the evidence brought before
them. And, surely, II 1t Is their duty Ia
consider the evidence, IL cannot be error for
the court &c. so tell them. The very purnose
or the Instructions OF the court Is to inform
the Jury sftheig duty.
word should In such charge is too i'm.
perative a character-that the expressIon
ought to be 1T Is the duty of or III ia fha
province Of the jury And we are inclined
10 think that 1t might be better TO use
sucn permissiye form, rather han the seem
ingiy Imperative word here used. 1t would
be better that there should not be even the
appearance OF error. Yet u is but a matter
or expression and the essential meaning Is
not changed. In any OF the forms used the
Jury are told only what is their duty, name
trial. What weight. IL any, ought tn he
given TO such evidence. is for the Jury alone
10 say, and the instruction does not touch
upon that right. Neither Is II true that fhe
instruction singles out or discredits any
witness or class Of witnesses. The Ianenae s
used by the court is general in form and
applies TO all witnesses who may be afected
by IL. without specifically pointing out any
1T is next insisted that the court erred
IN refusing TO give instruction Number II,
asked by the defendant. which is as fol-
lows:
And at this point the court instr,,cts
you as TO the defense set up by the accused.
that he killed Thomas In self-defense. that
In order for the defendant to succeed under
that plea. Il Is not required that the evil