Keith v. State. lant's guilt and concealed the fact on his voir dire examination. This was disputed by the State. The trial court heard affidavits and oral testimony pro and con. We are not authorized to disturb its finding on conflicting evidence. Hinshaw v. State, 147 Ind. 334; Hauk v. State, 148 Ind. 238. Appellant's objections to the court's action in permitting a stenographer to testify and to read her shorthand notes regarding the testimony of certain witnesses before the grand jury, are fully covered by the decision in Higgins v. State, 157 Ind. 57. William Clark, a witness for appellant, was not permitted to testify that he was to marry deceased on April 5th and that on that day he was searching for her with threats to kill her if she did not marry him. There was neither proof nor offer of any overt act by Clark against the life of Nora Kifer. Evidence of isolated threats by third parties is not admissible. Bonsall v. State, 35 Ind. 460; Jones v. State, 64 Ind. 473; Walker v. State, 102 Ind. 502; Davidson v. State, 135 Ind. 254; Siple v. State, 154 Ind. 647; Green v. State, 154 Ind. 655. Appellant offered to prove by Union Henon that, about May 1, 1900, at 9 o'clock at night, while he was on a highway four or five miles north of the Keith and Kifer neighborhood, he heard blows and a woman's voice begging some one not to strike or kill her, the sounds apparently coming from a place about seventy yards away. This was coupled with an offer to prove that appellant was not present at that time and place. If the prosecution fails to make a case, the defendant is not required to introduce any evidence. If the State makes a prima facie case, the defense is not limited to controverting the facts and circumstances proved by the State, but may bring forward any legitimate evidence to meet or throw doubt upon the State's case, including proof that another than the defendant committed VOL. 157-25 Keith v. State. the crime under investigation. Green v. State, 154 Ind. 655. But proof of an assault at another time and place upon some person other than the deceased is irrelevant. The evidence on the part of the State pointed to no other time and place than April 3rd and the vicinity of the old canal bridge. This was what the jury had to believe in order to find appellant guilty under the evidence. But, on the part of appellant, there was neither proof nor offer that Nora Kifer was alive and in the neighborhood of the alleged assault on the night of May 1st. We do not find the case of Synon v. People, 188 Ill. 609, 59 N. E. 508, to be applicable to the facts here. The court properly refused an instruction submitted by appellant in which were embodied the reasons given in section 214 of Greenleaf why "admissions and confessions are to be received with great caution". The weight and the credibility of the evidence of confessions in a given case are to be determined by the jury as facts. Some admissions or confessions may be entitled to little credit owing to confusion of the prisoner and the heedlessness or worse of the narrator. Other confessions, deliberately made, as Greenleaf says in section 215, "are among the most effectual proofs in the law". But the court can not properly charge as a matter of law that the confessions in evidence belong to the one class or the other. Garfield v. State, 74 Ind. 60; Davis v. Hardy, 76 Ind. 272; Unruh v. State, ex rel., 105 Ind. 117; Mauro v. Platt, 62 Ill. 450; Commonwealth v. Galligan, 113 Mass. 202; Castleman v. Sherry, 42 Tex. 59. Lastly, appellant challenges the correctness of this instruction: "If you find the defendant guilty of murder in the first degree as charged in the indictment, you have the right to fix his punishment at imprisonment for life or that he suffer death." From the organization of the Northwest Territory down to 1881, the penalty in this jurisdiction for murder in the first degree was death. Since 1881 the jury has had a discretion to fix the punishment at death or im Keith v. State. prisonment in the state prison during life. Throughout the whole period of Indiana's existence as Territory and State, the death penalty has been named in the statute defining murder in the first degree; and the common law has been in force except as modified by constitutions and statutes. As appellant's punishment was not fixed at imprisonment, his complaint is necessarily limited to that part of the charge which informed the jury that they might assess the death penalty. The charge was correct, unless capital punishment in this State has been abolished by implication. Prior to 1897 there was a state prison south located at Jeffersonville and a state prison north located at Michigan City. In 1889 a statute was passed directing that sentences of death. pronounced in counties south of a named line should be executed at the Jeffersonville and those north at the Michigan City prison. $1941 Burns 1894. Under this statute appellant should suffer death at the Jeffersonville prison. But in 1897, the name of the southern prison was changed to "The Indiana Reformatory" and the title of the officer in charge from "warden" to "superintendent". So far as imprisonment was concerned, the purpose of the institution was changed from the incarceration of male felons generally to that of those who were more than sixteen and less than thirty years old. Male felons over thirty years old were to serve their time at the northern prison, the name of which was changed to "The Indiana State Prison". Acts 1897, p. 69. The act of 1897 made no mention of the execution of death sentences. This was the state of the statutory law when the verdict in this case was returned on January 11, 1901, finding appellant guilty and assessing the death penalty. On January 28, 1901, a statute came into effect which provided that all sentences of death thereafter pronounced should be executed at the Michigan City prison. Acts 1901, p. 4. The court thereafter pronounced judgment and directed that the sentence be executed according to the provisions of the act of 1901. Appellant argues that, as to Keith v. State. him, the act of 1901 is an ex post facto law, and that the act of 1897 repealed the act of 1889 which prescribed when, where, how, and by whom death sentences should be executed. But the assignment is that the court erred in overruling the motion for a new trial. The motion sets forth various alleged "errors occurring at the trial". The particular ground to which the argument is addressed is that the court erroneously instructed the jury that they might fix appellant's punishment at death. The instruction was given, the trial concluded, and the verdict returned, before the act of 1901 was passed. The only question under the motion, therefore, was and is whether that part of the penal code which defines murder in the first degree and fixes the punishment at death was in force when the instruction was given. It is unnecessary to decide whether or not the failure of the act of 1897 to prescribe when, where, how and by whom death sentences should be executed, impliedly repealed that part of the act of 1889 which did name the time, place, manner and officer, because the express repeal of all legislation touching time, place, manner and officer would not abrogate the death penalty for murder, but would merely leave the court free to follow the common law in directing the execution of the sentence. Down to 1807, our statutes were silent respecting time, place, manner and officer. Laws of Northwest Territory, 1787-1802, ch. VI, §2, p. 98. The court issued its writ and the sheriff executed it. From 1807 to 1824, nothing was prescribed but the manner (hanging by the neck until dead), which was a mere affirmation of the common law method previously employed. R. S. Ind. Ter. 1807, ch. VI, §29, p. 39. In 1824 and 1831, the time was fixed, but no officer nor place was named. R. S. 1824, §65, p. 149; R. S. 1838, §76, p. 219. In 1843 (R. S. 1843, §70, p. 997), the sheriff was named. He was the proper officer by the common law. In 1852 (2 R. S. 1852, §134, p. 379) the place and the persons entitled to be present were named for the first time. In 1881 (§§1872, Keith v. State. 1875 R. S. 1881), some changes were made in time and place. Then followed the legislation of 1889, 1897, and 1901, heretofore referred to. Just as, starting from none, the details of method have been built up, so they might be taken down, one by one, or collectively, without affecting the definition of murder and the infliction of the death penalty therefor. There was no error in overruling the motion for a new trial. Since the oral argument and after the cause had been taken under advisement, appellant's counsel, probably having perceived that their attacks upon the law of 1901 and the part of the judgment which directs when, where, how and by whom the penalty shall be inflicted had not been duly presented to the trial court or here, have asked leave to file additional assignments of error with a view to having a basis for their attacks. At least two reasons forbid the granting of the request. The application comes too late. And there is nothing in the record on which to found the proposed assignments. The part of the judgment which sentences appellant to death is affirmatively approved. Appellant therefore can not successfully assail the judgment as an entirety. Having failed to move for a modification of the judgment with regard to the details of executing the sentence, appellant is unable to point out any ruling of the trial court on that subject for review. Appellant procured a change of venue from the Warrick to the Gibson Circuit Court. The unusually voluminous record discloses that the trial was conducted with great care, zeal and ability by the respective counsel. A conservative and painstaking judge, who saw the witnesses face to face, pronounced the sentence, and no valid reason has been advanced why it should not stand. Judgment affirmed. |