Brown v. State

Erwin, C. J.

This is a prosecution by the State of Indiana against appellant who was indicted jointly with his son for murder in the first degree. The indictment is in three counts, each charging appellant and son with the crime of murder in the killing of one Hawkins. A separate trial was demanded and the State chose to try appellant first. This trial resulted in a conviction of voluntary manslaughter, and the punishment fixed at imprisonment in the State prison not less than two, nor more than twenty-one years.

1. The appellant presents but one assignment of error, viz., the overruling of his motion for a new trial. The motion for a new trial contains thirty-six alleged causes why a new trial should be granted which arise upon the ruling of the court in admitting certain evidence tendered by the State, excluding certain evidence offered by the appellant, the giving of certain instructions, and the refusal to give certain instructions tendered by appellant. Many of the alleged errors are waived by appellant for failure to discuss them in his brief. The errors alleged and not waived are, (a) the verdict of the jury is contrary to law, (b) the verdict of the jury is not sustained by sufficient evidence, (e) the admission of improper evidence, (d) the exclusion of evidence tendered by appellant, (e) the giving of instructions Nos. 8, 58, 61, 63, 64, 65, 66, 83, 88.

2. 3. *2564. *255While there is sharp conflict in the evidence in the case on many material issues, we are of the opinion that there is sufficient evidence to support the verdict if believed by the jury. A matter which is for the jury to determine and its right to believe or disbelieve a witness is for its determination, and can not be reviewed by this court. Stolte v. State (1888), 115 Ind. 128, 17 N. E. 258; Indiana R. *256Co. v. Wadsworth (1902), 29 Ind. App. 586, 64 N. E. 938. Only questions of law will be reviewed by this court, and it is only where there is no evidence to support the verdict that any question of law is presented and this is true whether the conviction rests upon circumstantial or direct evidence, or' both. Thain v. State (1914), 182 Ind. 345, 106 N. E. 690.

5. *2576. *256The alleged error in the admission of certain testimony given by the witness, John W. Higgs, is based upon a conversation had between said witness and one Picket in the absence of the defendant, which related to some information witness received about the tragedy immediately after Hawkins was killed. On cross-examination of this witness by the attorney for appellant, he was asked if he did not have a conversation with Picket in which it was asked if Picket had not said certain things to him, the witness, and that if in answer to said statement of Picket, he, the witness, had not made certain statements. It is contended by appellant that the questions propounded to witness were for the purpose of laying the foundation for the impeachment of the witness, Higgs, and that an explanation of what was said, or the connection in which it was said was not competent, until the defense had introduced some evidence to contradict or to show that the statement was made as claimed by the defense. This witness had testified that he was in the employ of the traction company and that he heard appellant calling to some one and heard him use a vile epithet and that this was only a few minutes before Hawkins was killed. That a minute or two afterwards one Picket came in and informed him that someone was killed without giving the conversation. On cross-examination the witness was asked the following question, “I will ask you if *257you didn’t say to Pieket at that, time that he was in there, referring to this trouble here, if Pieket didn’t say to you, T heard some loud talk and swearing,’ and you didn’t say, ‘I didn’t hear anything, I don’t know anything about it, the machinery was making so much noise I could not hear?’ ” This question was answered in the negative. It is insisted by the State that where the defense opened the door by introducing on cross-examination a part of a conversation that the State would be entitled on reexamination to all that was said in that conversation. That is undoubtedly the rule. The attorney for appellant in addition to the question propounded for the purpose of impeachment asked a number of other questions in relation to .what was said by himself and Pieket in that conversation, some of which was related by the witness Higgs. The attorney for the prosecution on reexamination then asked the witness to relate all that was said between the witness and Pieket, and over the objection of appellant this was permitted. It is the settled rule that where a party opens the door by introducing a part of a conversation either in direct or cross-examination, the opposing party has a right to all that was said in that conversation. Henderson v. Henderson (1906), 165 Ind. 666, 75 N. E. New York, etc., R. Co. v. Lind (1913), 180 Ind. 38, 102 N. E. 449. The only objection interposed by appellant was that the evidence of what was said was immaterial. Appellant having brought out a part of the conversation on cross-examination, can not object that what was said was not material. Dinwiddie v. State (1885), 103 Ind. 101, 104, 2 N. E. 290; Perkins v. Hayward (1890), 124 Ind. 445, 449, 24 N. E. 1033.

We have carefully examined the. instructions eom*258plained of, and find that the court in its instructions to the jury covered fully every phase of the ease in a fair and impartial manner and no error was committed with regard to instructions.

There being no reversible error presented by the record the judgment is affirmed.