This was an indictment for murder in the first degree against the appellant, and Silas Hartman, and William J. Abrams, found and returned by the grand jury in the Marion Criminal Court. It is stated that the grand jurors of the county of Marion and State of Indiana, impanelled, charged,and sworn to inquire of feloniesand misdemeanors committed within the county of Marion, in said State of Indiana, on their oath, do present, charge, and find, that Silas Hartman, Nancy E. Clem, and William J. Abrams, all late of said county and State, and all being then and there of sound mind, on the 12th day of September in the year of our Lord one thousand eight hundred and sixty-eight, at said county of Marion and State of Indiana, did, with farce
A change of the venue was granted, on the application of the defendant, first from the judge of the criminal court, and then from the county of Marion to the county of Boone.
The defendant pleaded a former acquittal on another indictment charging her with the same crime. 'The State demurred to this plea, the demurrer was sustained, and the defendant excepted. She then pleaded not guilty, there was a trial by jury, and the jury failed to agree upon averdict. At a subsequent term ofthe court, there was a second trial by jury, which resulted in a verdict of guilty of murder in the second degree, the jury returning with their verdict the following recommendation : “ We, the jury, who have this day made our
verdict in the case of The State v. Nancy E. Clem, recommend her to the clemency of the executive of the State in her behalf.”
1. The sustaining of the demurrer to the plea of former acquittal; and,
2. The overruling of the motion for a new trial.
In the plea of former acquittal, the defendant alleges, that heretofore, on the 20th day of October, 1868, in the Marion Criminal Court, the grand jury, duly impanelled, sworn, and charged, etc., returned into open court an indictment, charging that Silas Hartman, Nancy E. Clem, the identical person now defendant in this action, and William J. Abrams, on the 12th day of September, 1868, at, etc., did, with force and arms, unlawfullj’-, feloniously, purposely, and with premeditated malice, make an assault upon one Nancy Jane Young, then and there and in the public peace being, and did, then and there, with force and arms, and with guns and pistols, and with leaden balls, shot, and slugs, then and there shot off and discharged by the said, etc., from the said guns and pistols aforesaid, at and against the said Nancy Jane Young, her the said Nancy Jane Young, then and there, unlawfully, feloniously, purposely, and with' premeditated malice, touch, strike, bruise and wound, then and there and thereby giving said Nancy Jane Young, in and upon the head of her, the said Nancy Jane Young, one mortal wound of the length of two inches, and of the depth of six inches, of which said mortal wound the said Nancy Jane Young, then and there instantly died. And so the jurors aforesaid on their oath aforesaid do say and find,- that the said Silas Hartman, Nancy E. Clem, and William J. Abrams, the said Nancy Jane Young, then and there in manner and form aforesaid, unlawfully, feloniously, purposely, and with premeditated malice, did kill and murder, contrary to the form of the statute in such case made - and provided, and against the peace and dignity of the State of Indiana. And she says that the said indictment was duly signed by the prose-
The cause of demurrer to the answer was, that it did not state facts sufficient to constitute any good and sufficient plea to the indictment.
When there is a demurrer to a pleading, ail the facts stated in the pleading, which are well pleaded, are to be taken as true for the purpose of determining the sufficiency of the pleading. The question is, does the pleading state facts sufficient to show that the defendant had been indicted in a court of competent jurisdiction, and tried and acquitted of the crime of mhrder in the first degree with which she is charged in this indictment ? If so, then it is a right secured by the common law, and guaranteed by the constitution of this State, that she shall not be again put in jeopardy for the same offence. 4 Bl. Com. 335; Constitution of Indiana, art. 1, sec. 14.
When a defendant is charged with the crime of murder in the first degree, he may be found guilty in that degree, or he may be convicted of murder in the second degree or of manslaughter, as the evidence may justify and require. 2 G. &. H. 405, sec. 72; Dukes v. The State, 11 Ind. 557; Kennedy v. The State, 6 Ind. 485. If upon such an indictment the jury find the defendant guilty of an inferior grade of homicide without saying anything as to the higher grade, the verdict is, by implication, an acquittal of the higher grade of the crime. 2 G. & H. 417, sec. 110; Weinzorpflin v. The State, 7 Blackf. 186; Brennan v. The People, 15 Ill. 511; Hurts;. The State, 25 Miss. 378.
1. That it does not show that the crime of which the defendant was acquitted was the same as that for which she was about to to be tried; and,
2. That the same facts might have been given in evidence under the plea of not guilty.
It is urged that the plea should show by proper allegation that the person in this indictment alleged to have been killed is the same person who was alleged to have been killed in the indictment in the former prosecution. In other words, that, in order to make it good, the plea should have alleged that Jacob Young, mentioned in the indictment in this case, is the same person as Nancy Jane Young, the person alleged to have been killed in the indictment on which the defendant was previously acquitted. But evidently this cannot be so, else when two persons are killed by the same act, and when the crime would therefore be one and indivisible, and when the State had chosen to indict the defendant and try him for the killing of one of them, there could be no plea of former acquittal when he was indicted for the death of the other produced by the same act. When, however, but one person has been killed, and in the second indictment the defendant is charged with the same crime, then, if the two indictments do not, When brought together, show that the person, charged in the second indictment to have been killed, is the same person mentioned in the first, that fact must be expressly alleged in the plea. But, if we are right in our view of the case under consideration, it is not only not necessary that the plea should contain such an allegation, but it would be impossible, consistently with the truth, that it could do so. If it be true, as we suppose it is, that the killing of two or more persons by the same act constitutes but one crime, then it follows that the State cannot indict the guilty party for killing one of the persons, and after a conviction or acquittal indict him for the killing of the other; for the State cannot divide that which constitutes but one crime, and make the different parts of it the bases
.The plea of former acquittal is very simple in its structure. It is said to be a plea of a mixed nature, and to consist partly of matter of record, and partly of matter of fact. The matter of record is the former indictment and acquittal, the matter of fact is the averment of the identity of the offence and of the defendant as the person formerly indicted, i Chit. Crim. Law, 459. There is no question made in this case as to the sufficiency of that part of the plea which sets forth the matter of record, that is, the former indictment and acquittal. But the objection is, that it does not sufficiently allege the identity of the felony charged in this case with that charged in the former case, of which the defendant was acquitted. The form of the allegation of identity in the precedents is very general. Consulting some of the forms, we find it stated as follows: “That the felony' and murder in the said former indictment mentioned, and the felony and murder in this present indictment mentioned, are one and the same felony and murder and not divers and different felonies and murders.” Whart. Preced. 1150. “And that the felony of which he, the said A. B., was so indicted and acquitted, as aforesaid, and the felony of which he is now indicted, are one and the same felony.” Bicknell Crim. Prac. 120. Under this general allegation the evidence is
The language of the plea, with reference to the identity of the crime, is not exactly that which is used in the approved precedents, but we think it is in effect the Same. It states that the crime charged against the defendant in said indictment, and of which she was tried and acquitted, was and is identical in all its parts, incidents,. and circumstances, with the crime charged in the indictment upon which she was about to be tried, and that the evidence, whereby the State could and would attempt to support and prove the same, is the same, and nowise different from that employed and produced against her upon the former trial. It seems to us that this language sufficiently shows that the crimes are the same. It does not follow because one of the indictments was for the murder of Nancy Jane Young, and the other for the murder of Jacob Young, that the crime is not the same. If the same act of the defendant resulted in the death of both of them, there was but one crime. Where, by the discharge of a fire-arm, or a stroke of the same instrument, an injury is inflicted upon two or more persons, or their death is produced, there is but one crime committed. In The State v. Damon, 2 Tyler, 387, the defendant "was indicted for an assault and battery on one Doty, and pleaded a former conviction on a complaint for an assault and battery committed upon one Miller, alleging that the wounding of each was by the same stroke, and at the same time. The court said, in delivering its opinion: “It appears that the defendant wounded two persons in the same affray, at the same instant of time, and with the same stroke. On a regular complaint made, he has been convicted before a court of competent jurisdiction for assaulting, beating and wounding Frederick Miller, one of those persons. He stands here indicted for assaulting, beating and wounding Elias Doty, the other of those persons; and the defendant pleads in bar the former conviction, which he alleges to have been for the same offence. The only question is, whether the defendant has
“ This is not a question between either of the parties injured by the assault and battery and their assailant; redress has been or may be obtained by them by private action; but it is a question between the government and its subject, and the court are clearly of the opinion that the indictment can not be sustained. The indictment charges the defendant with having disturbed the public peace by assaulting and wounding one of its citizens. For this crime he shows that he has been legally convicted by a court of competent jurisdiction. He cannot, therefore, be again held to answer in this court for the same offence.”
In The State v. Williams, 10 Humph, 101, the defendant was indicted for stealing a horse, saddle, bridle, blanket and martingale, and it was decided to be but one offence. And see Laupher v. The State, 14 Ind. 327. In the State v. Nelson, 29 Me. 329, it was held that where the goods of several persons were stolen at the same time, so that the transaction is the same, one count in the indictment may embrace the whole; and in Commonwealth v. Williams, Thacher Crim. Cas. 84, the same doctrine is laid down. The court in its opinion quote, with approbation, the language of Lord Hale, 1 P. C. 531, where he says: “ For it seems to me that if at the same time, the party steal goods of A. of the value of 6d., goods of B. of the value of 6d., and goods of C. of the value of 6d., being perchance in one bundle, or upon a table, or in one shop, this is grand larceny, because it is one entire felony, done at the same time, though the persons had several properties, and therefore, if in one indictment, they make grand larceny.”
A case more nearly in point is Ben v. The State, 22 Ala. 9, where the defendant was indicted for administering poison
In the case under consideration, we regard the allegations of the plea of former acquittal as stating in effect that the same act caused the death of Jacob Young and Nancy Jane Young, and therefore as bringing the case within the rule established by the authorities to which we have referred.
The statute provides, that in all criminal prosecutions the defendant may plead the general issue orally, which shall be entered on the minutes of the court, and under it every matter of defence may be proved. 2 G. & H. 413, sec. 97. But this is a privilege conferred upon the defendant, and was not designed to take away from him the right to plead specially any defence which before the enactment of the section might have been specially pleaded. It is an affirmative statute and does not take away or abrogate the common law. It is expressly provided in the criminal code, that the laws and usages of this State relative to pleadings and practice in criminal actions, not inconsistent with the code, as far as the same may operate in aid thereof, or to supply any omitted case, are continued in force. 2 G. & H. 428, sec. 172. The defences which a defendant might plead specially in bar of the indictment were formerly of four kinds; a former acquittal, a former conviction, a former attainder, and a pardon. But as attainders are prohibited in this country, Const. U. S. art. 1, sec. 10, and as pardons are not granted until after conviction, State Const, art. 5, sec.
In this State, we think it is optional with the defendant, whether he will plead a former acquittal or a former conviction specially or give it in evidence under the general issue as authorized by the statute. If he elect to plead such defence specially, then it seems that he is entitled to have that issue tried before he is bound to plead the general issue. We are referred by counsel to civil cases, where it has been held that it is not an available error that a demurrer has been sustained to a pleading, when there is another pleading under which the same evidence is admissible. We think the rule is not
But it is urged that we may regard the evidence that was given on the trial of the cause upon the general issue which was pleaded after the sustaining of the demurrer to the plea of former acquittal, in deciding the question under consideration, and we are referred to 2 G. & H. 419, sec. 118, and 427, sec. 160.'. We are unable to see how we can do this. We cannot know that the evidence in the record bearing on this question is the only evidence which would have been introduced, had the defendant been allowed to try- the issue presented by her plea of former acquittal. The question relating to the sufficiency of the plea was presented to the circuit court before the evidence was heard, and wholly disconnected from it. The court decided it insufficient. The question now comes before us, and we must decide it, as that court did, unaffected by the evidence which was afterward adduced upon the trial of another issue. If the crime was not the same as that of which the defendant had before been acquitted, the State had only to take issue upon the plea, and when it was found against the defendant, compel her to plead the general issue and go to trial upon the question of her guilt or innocence of the charge contained in the indictment.
If there was any other fact which could have been pleaded in avoidance of the plea, it was the privilege of the State, by her attorney, to plead the same by way of reply. We are of the opinion that the court erred in sustaining the demurrer to the plea.
The questions arising out of the overruling of the motion for a new trial are next' to be considered. Among the objections urged against the regularity of the proceedings upon the trial, exception is taken to several portions of the instruction of the court to the jury. The following is the. first which we shall notice: “If you have a reasonable doubt whether the material facts have all been given to you. in evidence, and whether other relevant and material facts-
In the second sentence of the charge there are two things referred to; first, other facts exculpatory in their character, which could have been proved by the defendant; and, second, that she was not guilty, and could have so explained those given in evidence as to show their consistency with her innocence. The first case supposed, that is, the failure to prove exculpatory facts, which the defendant could have proved, the jury is informed, may be considered in connection with other circumstances, offered to show the defendant’s guilt. It relates to facts not proved by either party, but which the defendant might have proved. It proceeds upon the supposition that there are other facts which the defendant could have proved, that those facts are exculpatory in their character, and then states that if the facts, thus known to be exculpatory in their character, are not proved by the defendant, the jury may regard her failure to do so as evidence of her guilt.
The second proposition is, that if she was innocent, and did not explain the facts given in evidence against her so as to show their consistency with her innocence, the jury might regard her failure as evidence of her guilt. If she was not guilty, it is difficult to see how her failure -to explain' circumstances inconsistent with her innocence could make her guilty. In the first branch of the sentence, the court speaks of facts exculpatory in their character. In the second the court speaks of “those given in evidence,” meaning, we suppose, notthe exculpatory facts before spoken of, but the inculpatory or criminative facts which had been given in evidence by the State against the defendant. To these last facts we understand the third sentence of the charge to relate, in which the court informed the jury that conviction could not be had, whether the defendant did or did not disprove any of the circumstances arrayed against her, unless the circumstances proved convinced them, beyond a- reasonable
The court also gave the following instruction to the jury: “ Remember that you are each responsible for the verdict you shall render, not forgetting, however, that no man can safely consider himself infallible; that no number of minds can agree upon a multitude of facts, such as this case pre
It is the duty of jurors to consider carefully every part of the evidence, and, if necessary, reconsider it, and to hear and consider the views and arguments of their fellow jurors, but at last each one of them must act upon his own judgment, and not upon that of another. This seems to be the rule contemplated by the statute, which makes it a
There are other questions presented and argued, arising out of the motion for a new trial, but as the full bench of this court has unanimously concluded that, for the reasons already stated, the judgment must be reversed, we do not regard it necessary to examine and decide the other questions to which we have alluded.
The judgment is reversed, and the cause remanded; and the clerk is directed to certify to the warden of the state prison south, to return the defendant to the jail of Boone county.