STEPHENSON v. STATE
Supreme Court of Indiana
179 N.E. 633,
205 Ind. 141 (1932)
Trial and Alleged Errors
Facts of Case Discussion by Majority Dissent of Martin, J. Dissent of Treanor, J.
CASE
FOR THE PROSECUTION: WITNESS TESTIMONY
CASE
FOR THE DEFENSE: WITNESS TESTIMONY
CLOSING
TRIAL ARGUMENTS IN STATE v. STEPEHENSON
PER
CURIAM.
Appellant,
together
with Earl Gentry and Earl
Klinck, was charged with the crime of homicide by an indictment in four
counts
returned by the grand jury of Marion county, Ind., which indictment,
omitting
the formal parts, reads as follows:
[Indictment]
"The Grand Jurors
for the County of
Marion and State of Indiana upon their oaths, present that David C.
Stephenson,
Earl Gentry and Earl Klinck, on or about the 16th day of April, A. D.
1925, at
and in the County of Marion and State aforesaid, did then and there
unlawfully,
feloniously and with premeditated malice kill and murder Madge
Oberholtzer in
the manner and form and by the means following, towit: That said David
C. Stephenson,
Earl Gentry and Earl Klinck did then and there on the 16th day of
March, 1925,
wrongfully, unlawfully and feloniously by force of arms and by duress
and by
putting her the said Madge Oberholtzer in fear and against her will
take
possession of the body and person of her, the said Madge Oberholtzer,
and did
then and there wrongfully, unlawfully and feloniously by force of arms
and by
duress and by putting her, the said Madge Oberholtzer in fear and
against her
will place her in a drawing room of a certain pullman passenger car
which was
then and there a part of a railroad train, which train was then and
there
scheduled to and did shortly thereafter depart from the city of
Indianapolis
for a regular trip to the City of Chicago; and said defendants did then
and
there wrongfully, unlawfully and feloniously, by force of arms and by
duress
and by putting her, the said Madge Oberholtzer in fear and against her
will
restrain her of her liberty in the drawing room of said car on said
train
during the progress of said train to the city of Chicago until the city
of
Hammond, in the State of Indiana, was reached; and said defendants did
unlawfully and feloniously while so holding possession of the body and
person
of said Madge Oberholtzer, as aforesaid, and so restraining her of her
liberty
in the drawing room of said car as aforesaid, upon the body and person
of her,
the said Madge Oberholtzer, commit an assault, and did her, the said
Madge
Oberholtzer, unlawfully and feloniously in a rude and insolent manner
her the
said Madge Oberholtzer strike, beat, bite and grievously wound with the
unlawful and felonious intent her, the said Madge Oberholtzer, to
ravish and
carnally know forcibly and against her will; and said defendants when
said
train arrived at the City of Hammond at about 6 o'clock in the morning
of the
17th day of March, 1925, still unlawfully and feloniously, while so
holding
possession of her the said Madge Oberholtzer and so restraining her of
her
liberty as aforesaid did cause her to depart from said car of said
train and to
enter the room of a hotel in said city of Hammond and to occupy a bed
with said
defendant Stephenson; that thereafter on the said 17th day of March,
1925, in
said city of Hammond, the said Madge Oberholtzer, distracted with the
pain and
shame so inflicted upon her by said defendants as aforesaid, did
procure and
swallow into her stomach a large quantity of deadly poison, towit:
Bichloride
of mercury; that said defendants on said day with full knowledge that
she the
said Madge Oberholtzer had taken said poison as aforesaid and although
requested by her so to do did unlawfully, feloniously and wilfully
wholly fail
and refuse to procure for or furnish to her the said Madge Oberholtzer
any
antidote for said poison or any attention or help from any physician or
any one
skilled in counteracting the effects of said poison although they and
each of
them were then and there fully able to procure such antidote and the
help of
such physician; that said defendants did, on the afternoon and night of
said
March 17th, still unlawfully and feloniously by force of arms and by
duress and
by putting her the said Madge Oberholtzer in fear holding possession of
the
body and person of her the said Madge Oberholtzer and restraining her
of her
liberty, place her in an automobile and by said vehicle did transport
her back
to the city of Indianapolis and did during said night and until near
noon of
the 18th day of March so hold possession of her body and person and
restrain
her of her liberty as aforesaid in a room in a garage of said defendant
Stephenson, and did at all times during said return and at all times
during the
imprisonment of her the said Madge Oberholtzer in said garage
unlawfully and
feloniously wholly fail and refuse to furnish or provide for or
administer to
her any antidote for said poison and did unlawfully and feloniously
wholly fail
and refuse to procure for her or furnish to her any attention by or
help from
any physician or any one skilled in counteracting the effects of said
poison
although they said defendants and each of them were then and there
fully able
to procure such antidote and help from such physician; that thereafter
she the
said Madge Oberholtzer did at and in the County of Marion aforesaid
languish
and languishing did thereafter on April 14, 1925, in said County die
from the
effect of her wounds inflicted as aforesaid and said poison taken as
aforesaid.
"And so
the Grand
Jurors aforesaid upon
their oaths aforesaid do charge and present that said defendants did,
by the
manner and means aforesaid her the said Madge Oberholtzer unlawfully,
feloniously and with premeditated malice 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.
"Count two. And the
Grand Jurors
aforesaid, upon their oaths aforesaid do further present and charge
that David
C. Stephenson, Earl Gentry and Earl Klinck on the 16th day of March, A.
D.
1925, at and in the County of Marion and State aforesaid did then and
there
unlawfully, feloniously and purposely and with premeditated malice kill
and
murder one Madge Oberholtzer by then and there unlawfully and purposely
causing
to be administered to the said Madge Oberholtzer by her own hand a
certain
deadly poison, commonly called Bichloride of mercury which the said
Madge
Oberholtzer acting under fear and duress and the compulsion of said
David C.
Stephenson, Earl Gentry and Earl Klinck, then and there swallow into
her
stomach and body by which she then and there thereby died.
"And so the Grand
Jurors aforesaid upon
their oaths aforesaid do present and charge that David C. Stephenson,
Earl
Gentry and Earl Klinck did unlawfully, purposely, feloniously and with
premeditated malice, in the manner and form and by the means aforesaid
the said
Madge Oberholtzer, 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.
"Count three. And
the Grand Jurors
aforesaid upon their oaths do further present and charge that David C.
Stephenson, Earl Gentry and Earl Klinck, on the 16th day of March,
1925, at and
in the County of Marion and in the State of Indiana, did then and there
unlawfully and feloniously make an assault upon the body and person of
one Madge
Oberholtzer, a woman of the age of twenty‑eight years, and her the said
Madge
Oberholtzer did then and there unlawfully and feloniously touch, beat,
strike,
bite and wound the body and person of the said Madge Oberholtzer with
the
unlawful and felonious intent then and there and thereby forcibly and
against
her will her the said Madge Oberholtzer to ravish and carnally know,
from which
said assault and from which said touching, biting, striking and
wounding and as
a result thereof the said Madge Oberholtzer, did then and there sicken,
languish and die.
"And so the Grand
Jurors aforesaid upon
their oaths aforesaid discharge and present that said David C.
Stephenson, Earl
Gentry and Earl Klinck did unlawfully and feloniously in the manner and
form
and by the means aforesaid the said Madge Oberholtzer 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.
"Count four. The
Grand Jurors aforesaid,
upon their oaths aforesaid, further present that David C. Stephenson,
Earl
Gentry and Earl Klinck on or about the 16th day of April A. D. 1925, at
and in
the County and State aforesaid, did then and there unlawfully,
feloniously,
purposely and with premeditated malice kill and murder one, Madge
Oberholtzer,
in the manner following to wit: that they the said David C. Stephenson,
Earl
Gentry, Earl Klinck and each of them did then and there unlawfully,
feloniously, wilfully and forcibly take possession of and assume and
undertake the
custody and control of the body and person of the said Madge
Oberholtzer
against her will, she the said Madge Oberholtzer being then and there
in a
weak, sick and helpless condition, and did then and there assault,
beat, strike
and bite and wound the said Madge Oberholtzer with the unlawful and
felonious
intent then and there to rape, ravish and carnally know her the said
Madge
Oberholtzer against her will, that by reason of said assault and wounds
aforesaid, the said Madge Oberholtzer was then and there in great
distress of
mind and body and distracted with pain and grief and did then and there
while
in the throes of such bodily pain and mental grief and distraction
procure and
swallow a quantity of poison towit: bi‑ chloride of mercury, that
thereupon said
Madge Oberholtzer became violently ill and was then and there in need
of
medical treatment, attention and the services of a physician, such
medical
services and treatment being then and there necessary to the
preservation and
prolongation of the life of her, the said Madge Oberholtzer, all of
which was
then and there well known to the said David C. Stephenson, Earl Gentry
and Earl
Klinck and each of them, and they and each of them being then and there
able to
provide such medical attention, services and assistance and she, the
said Madge
Oberholtzer being then and there weak, helpless and dependent upon the
said
David C. Stephenson, Earl Gentry and Earl Klinck for such medical care,
treatment and services; that they the said David C. Stephenson, Earl
Gentry and
Earl Klinck and each of them did then and there unlawfully, feloniously
and
forcibly imprison, restrain and prevent said Madge Oberholtzer from
obtaining
such medical assistance and services with the unlawful and felonious
intent on
the part of each of them to kill and murder the said Madge Oberholtzer;
that
due to said acts aforesaid, on the part of the defendants aforesaid,
and each
of them, in preventing her from obtaining such medical attention and
preventing
from obtaining the services of a physician she the said Madge
Oberholtzer then
and there languished and afterward towit: on the 14th day of April A.
D. 1925,
she the said Madge Oberholtzer then and there and thereby died from the
effects
of said poison aforesaid, and so the Grand Jurors aforesaid, upon their
oaths
aforesaid do say and charge that said David C. Stephenson, Earl Gentry
and Earl
Klinck in manner and form
aforesaid, did kill and murder said Madge Oberholtzer, contrary to the
form of
the statute in such case made and provided, and against the peace and
dignity
of the State of Indiana."
[Trial and Alleged Errors]
The
trial court sustained a demurrer to appellant's plea in abatement,
overruled
his motion to strike out parts of count one and four, and to quash the
indictment,
to all of which rulings proper exceptions were reserved. Appellant
entered a
plea of not guilty, and filed his motion for a change of venue from the
county,
which motion was sustained by the court, and the cause was sent to
Hamilton
county for trial. Appellant there filed a motion to be let to bail, and
to
require the state to elect upon which count of the indictment it would
go to
trial. Each of said motions were overruled and exceptions saved. During
the
trial, appellant twice moved to have the court set aside the submission
of said
cause and discharge the jury, and, at the conclusion of the state's
evidence,
moved for an instructed verdict in his favor, which motions the court
overruled.
The
court instructed the jury in writing, giving fifty‑seven instructions,
twelve
of which were tendered by appellant, and twenty‑seven given by the
court of his
own motion, over the objections of appellant.
The jury returned a verdict finding
appellant "guilty of murder in the second degree as charged in the
first
count of the indictment," and fixing his punishment at life
imprisonment,
on which verdict judgment was entered on November 16, 1925. Gentry and Klinck were acquitted.
Appellant filed a
motion to set aside and
vacate the judgment; that he be held in the Hamilton county jail
pending the
preparation and filing of his motion for a new trial; motion in arrest
of
judgment; motion for a new trial; each of which was overruled by the
court.
Appellant by
his first, second, third, and fourth assignments of error
presents
the question of whether the Hamilton circuit court acquired
jurisdiction over
the person of the defendant, over the subject‑matter of the action, to
try said
cause and pronounce judgment thereof. Appellant's only reason for this
contention is because the transcript of the proceedings in the Marion
circuit
court was not signed by the clerk of the Marion circuit court.
Appellant says
that the omission of the signature of the clerk is fatal, and that
there never
was a legal transcript of the proceedings in the Marion circuit court
filed
with the clerk of the Hamilton circuit court, and cites in support
thereof
sections 2239, 2240, 11846, Burns' Ann. St. 1926, and Fawcett v. State
(1880)
71 Ind. 590.
Section 2239, supra,
provides that "When
affidavits for a change of venue are founded upon excitement or
prejudice in
the county against the defendant, the court, in all cases ***
punishable by
death, shall grant a change of venue to the most convenient county. The
clerk
must thereupon immediately make a transcript of the proceedings and
orders of
the court, and, having sealed up the same with the original papers,
shall
deliver them to the sheriff, who must, without delay, deposit them in
the
clerk's office of the proper county, and make his return accordingly.
***"
Section 2240, supra, provides that "The jurisdiction of the court to
which
the change of venue is granted shall be complete, and the cause must be
docketed and stand for trial at the first term thereafter; and such
court shall
take cognizance of such cause and proceed thereon to trial, judgment
and
execution in all respects as if the indictment therein had been found
and
returned by a grand jury impaneled in such court. ***" The appellant,
as
stated above, does not contend that the procedure set out in the latter
part of
section 2239, supra, was not followed. It will be observed that neither
section
2239 nor section 2240 expressly requires the transcript to be
certified, but
only requires the clerk to make a transcript, which means a copy.
Webster
defines the word transcript as "that which has been transcribed; a copy
of
any kind." Worcester says it is a "writing made from or after an
original; a copy." Burill defines it as "a copy, particularly of a
record." Bouv. Law Dict., Vol. 3, page 3308, as "a copy of an
original writing or deed." Our own court defined the word transcript in
the case of Mitchell et al. v. Beissenherz (1922) 192 Ind. 587, 135 N.
E. 885,
as follows: "A transcript is what the name implies, a copy." The
Supreme Court of Nevada in State v. Board of Equalization, 7 Nev. 83,
95, said:
"The word 'transcript' at once suggests the idea of an original
writing.
The word, not only in its popular but legal sense, means a copy of
something
already reduced to writing." Then was there, in fact, a transcript made
by
the clerk of Marion county, sealed up with the original papers,
delivered to
the sheriff, who in turn deposited them in the office of the clerk of
the
Hamilton circuit court? This is the only requirement of the two
sections above.
But appellant says that section 11846, supra, is applicable here, and
calls our
attention to Fawcett v. State, which holds that the certificate of the
clerk,
signed and sealed, is necessary to the legality of the transcript, and
without
it there is legally no transcript. Section 11846, supra, reads as
follows:
"In all cases where a complete record is dispensed with, the production
of
the papers and entries relating thereto, and all transcripts thereof,
certified
and attested with the seal of such court as complete copies of all the
papers
and entries of such cause, shall have the same force in evidence as a
transcript of a complete record thereof." The Fawcett Case holds
that the last above quoted
section of the statute is applicable in a change of venue case, and
requires
the transcript thereof to be signed by the clerk; to which reasoning we
cannot
agree. We are of the opinion that section 1846, supra, has no
application to a
case of this kind, and was never intended by the Legislature to require
the
clerk of the circuit court to certify to a transcript on change of
venue.
Therefore, in so far as the case of Fawcett v. State, 71 Ind. 590,
conflicts
with the views herein expressed, the same should be, and is hereby,
overruled.
We are further strengthened in our view of the above statutes, for we
find that
the Legislature, when they required a transcript to be certified, used
appropriate language to that effect. Section 1946, Burn's Ann. St.
1926,
governing appeals from the justice of the peace to the circuit court,
expressly
provides that the justice shall make out and certify a complete
transcript,
etc.; also section 716, Burns' Ann. St. 1926 which has to do with
transcripts
on appeal to this court, expressly provides that the transcript shall
be
certified and sealed by the clerk. We find no such provision in the
statute
governing the procedure in changes of venue cases. We do not desire to
be
understood by what we have said as discouraging the practice which has
been
very general in this state, of the clerk of the circuit court
certifying to
transcripts on change of venue, as we feel this is very good practice,
but we
cannot agree that the failure of the clerk to affix his signature to
the
certificate is essential to the legality of the transcript, where all
the
requirements of the statute have been satisfied.
Appellant's fifth
assignment of error relates to the action of the
court in
sustaining appellee's demurrer to his plea in abatement. Appellant
alleges in
his plea in abatement that there was no legal evidence before the grand
jury,
on which it could return an indictment. This question was decided
adversely to
appellant's contention in the case of Pointer v. State (1883) 89 Ind.
255, in
which case the following language was used: "The questions attempted to
be
presented by the first and second causes for a new trial could,
therefore, only
have been raised by pleading them in abatement, and by pleading in bar
all
matters in abatement were waived. *** It is, nevertheless, no ground
for a plea
in abatement, that the indictment was found without evidence, or
without
sufficient evidence, or that no vote was taken by the grand jury on the
indictment." See 31 C. J. 586, § 50; Guy v. State (1906) 37 Ind.
App. 691,
77 N. E. 855.
Appellant's
sixth and seventh
assignments of error relate to the overruling of his motion to strike
out parts
of count one of the indictment; particularly the latter part thereof
which
relates to the happenings subsequent to the taking of poison by Miss
Oberholtzer, and which charged that appellant failed to provide medical
aid. A
motion to strike out parts of an indictment is not provided for by our
Code of
Criminal Procedure; yet this court has recognized such procedure for
the
purpose of removing from an indictment such allegations as serve only
to prejudice
the court or jury against the defendant, without aiding or contributing
to the
statement of the offense charged. In Torphy v. State (1918) 187 Ind.
73, 118 N.
E. 355, 356, the defendant was charged with the crime of keeping and
operating
a place where intoxicating liquor was sold in violation of section
8351, Burns'
Ann. St. 1914, Acts 1907, c. 293, p. 689. Following the statement of
the
charge, the indictment further alleges that appellant had previously
been
convicted of a similar offense, although the statute on which the
prosecution
was based made no provision concerning a second or subsequent
conviction on the
charge of keeping or operating a place where intoxicating liquor was
sold in
violation of law. The defendant filed a motion to strike out that part
of the
indictment that alleged a prior conviction, which motion was overruled
by the
court. On appeal this court said that "The fact of a prior conviction
was
not, under the issue in this proceeding, a circumstance which could
properly be
brought to the attention of the jury in any manner as a part of the
state's
case *** and all reference thereto should have been omitted from the
indictment." The court held that it was reversible error for the lower
court to overrule the motion to strike out, for the reason that it
could serve
no other purpose than to prejudice the jury against the defendant. Such
is not
the case here. The allegations or recitals sought to be stricken out of
the
first count were facts and circumstances which could have been and were
properly brought, under the issues in this case, to the attention of
the jury
by evidence in support of the crime charged in the fourth count of the
indictment. Had the court sustained appellants' motion, no evidence
would have
been withheld from the jury by reason thereof. Evidence of the facts
concerning
appellant's treatment of Miss Oberholtzer after she swallowed the
poison was
competent under the fourth count, and therefore the action of the trial
court
in overruling appellant's motion to strike out the latter part of count
one
could not have had the effect of prejudicing the jury against him, by
permitting the state to bring certain facts to their attention that it
could
not have presented in any other way under the issues. In other words,
the court
should not permit an indictment to be used as a means of conveying
facts to the
jury that could not be properly presented in evidence from the witness
stand.
The rule as laid down in the case of Torphy v. State, supra, is not
broad
enough to cover the facts here, and we do not deem it advisable to extend the rule as heretofore
announced. The allegations in the latter part of count one, and set out
in the
second specification of appellant's motion to strike out, at the most
could
only be surplusage that in nowise could have injured appellant.
Bechtelheimer
v. State (1876) 54 Ind. 128; Musgrave v. State (1892) 133 Ind. 297, 32
N. E.
885.
Appellant's
eighth and ninth
assignments of errors questions the ruling of the court on his motion
to quash
the first count of the indictment. Appellant's motion to quash states
the
statutory grounds (a) that the facts stated in count one do not
constitute a
public offense; (b) that count one does not state the offense with
sufficient
certainty. Appellant states that the law requires the facts and
circumstances
constituting the offense to be stated in plain and concise language;
also that
it must be shown by proper allegations that the alleged act or acts of
the
accused was the proximate cause of the death as distinguished from the
cause of
a condition affording an opportunity for the compassing of death by
some other
unconnected agency. It is contended by appellant in his brief that the
indictment is fatally defective, for he says the facts show that an
independent
supervening cause of death is given; it being alleged that deceased
voluntarily
procured and swallowed a large quantity of deadly poison, and this is
given as
one of the joint causes of death. Then appellant urges that it is the
law that
when wounds are inflicted by one person on another, which wounds are
not within
themselves fatal, and a supervening cause intervenes, such supervening
cause
not being at the direction, request, or connivance of the one
inflicting the
wounds, and that but for such supervening cause death would not have
resulted,
the inflicting of the wounds is not the proximate cause of death, but
the
supervening cause is the proximate cause, and the one responsible for
the
death. We readily agree with appellant's statement of the law, and that
in case
of Bush v. Commonwealth (1880) 78 Ky. 268; Rigsby v. State (1910) 174
Ind. 284,
91 N. E. 925; Kelley v. State (1876) 53 Ind. 311, and other cases cited
by
appellant, we think the above rules were correctly and properly
applied. So if
it be true, as appellant contends, that the indictment alleges that
Madge
Oberholtzer voluntarily committed suicide, that is, that she took her
own life
while in sound mind, such an act on her part would constitute an
intervening
responsible agent such as would break the causal connection between the
acts of
appellant and the death of Madge Oberholtzer. But we cannot agree with
appellant in this construction of the first count of the indictment,
for it is
alleged in said count, in effect, that Madge Oberholtzer was, at the
time she
swallowed the poison, distracted with the pain and shame inflicted upon
her by
appellant. If the allegations be true, and we must so consider them on
a motion
to quash, then the act of Madge Oberholtzer in taking the poison was
not the act
of a responsible agent, and the chain of cause and effect between the
acts of
appellant and the death would not be broken, and appellant would be
guilty of
murder, provided the alleged irresponsible mental condition of Madge
Oberholtzer could be said to be the natural and probable result of the
alleged
treatment by appellant. Whether or not the alleged treatment accorded
Madge
Oberholtzer by appellant would naturally and probably result in
rendering her
distracted and mentally irresponsible was a question of fact for the
jury. We
think the facts and circumstances alleged and set out in the indictment
were
sufficient if proven to justify a finding of guilty by the jury. Regina
v.
Pitts [1842] Car. & Mar. Rep. 284; Rex v. Beech [1912] 23 Cox Crim.
L. Cases
181; Wilder v. Russell Library Co. (1927) 107 Conn. 56, 139 A. 644, 56
A. L. R.
455; Wharton on Homic. §§ 374, 375; Wharton Crim. Law (10th
Ed.) § 167.
Appellant contends that
said first count is defective, in that it nowhere charges the appellant
with
the purpose to kill Madge Oberholtzer. This allegation, we think, is
not
necessary where it is alleged that life is taken in the commission of a
felony,
such as attempted rape, as is charged in the first count of the
indictment,
section 2412, Burns' Ann. St. 1926; Moynihan v. State (1880) 70 Ind.
126, 36
Am. Rep. 178; Cole v. State (1922) 192 Ind. 29, 134 N. E. 867. The
sufficiency
or insufficiency of an indictment may be tested by the answer to the
following
question: "Can the facts properly alleged be true, and the defendant
innocent of the offense charged against him?" If the answer must be in
the
affirmative, the indictment is bad; if in the negative, the indictment
is good.
State v. Hilgendorf (1899) 23 Ind. App. 207, 55 N. E. 102. An
indictment which
charges a public offense with reasonable certainty is good, although
the
offense may not be charged with strict formality, and there may be
surplusage
in the indictment. Hobbs v. State (1893) 133 Ind. 404, 32 N. E. 1019,
18 L. R.
A. 774; State v. White (1891) 129 Ind. 153, 28 N. E. 425; Fisher v.
State
(1891) 2 Ind. App. 365, 28 N. E. 565; State v. McDonald (1886) 106 Ind.
233, 6
N. E. 607; Myers v. State (1885) 101 Ind. 379. Defects that do not
affect the
substantial rights of the defendant are not sufficient to require the
quashing
of an indictment or information. Billings v. State (1886) 107 Ind. 54,
6 N. E.
914, 7 N. E. 763, 57 Am. Rep. 77; Woodward v. State (1885) 103 Ind.
127, 2 N.
E. 321. An indictment that fairly informs the accused of the offense
charged
against him and enables the court to pronounce judgment according to
the right
of the case is sufficient. Woodward v. State, supra; State v. Shaw
(1892) 22
Or. 287, 29 P. 1028. Under the Code of Criminal Procedure in this state, no more certainty is
required in criminal than in civil pleading; all that is required is
that the
averments be certain to a common intent. Meiers v. State (1877) 56 Ind.
336,
342; McCool v. State (1864) 23 Ind. 127, 129; State v. Jenkins (1889)
120 Ind.
268, 269, 22 N. E. 133; State v. Hopper (1892) 133 Ind. 460, 464, 32 N.
E. 878;
Gillett's Criminal Law (2d Ed.) § 125. Testing the first count of
the
indictment in this case by the rules above stated, we are forced to the
conclusion that the indictment is good.
Appellant next
urges that the court below
erred in not requiring the state to elect on which count it would go to
trial.
Where an indictment contains several counts each charging the murder of
the
same person, but in a different manner, the state cannot be compelled
to elect
between such count. Merrick v. State (1878) 63 Ind. 327.
In
his motion in arrest of judgment, appellant urges the same reasons that
he
urged in his motion to quash, and we need say nothing further on this
question.
Appellant contends that
the trial court erred in not permitting him to
remain
in the Hamilton county jail pending the preparation and filing of his
motion
for a new trial. The statutes, sections 2358, 2359, Burns' Ann. St.
1926,
provide that the clerk after the conviction and sentence must without
delay
certify a copy of the judgment to the sheriff, and the sheriff must
within five
days convey the convict to the prison. It is true that this court in Ex
parte
Huffman (1914) 181 Ind. 241, 104 N. E. 511, 512, held that under
article 1, §
13, Const., section 65, Burns' Ann. St. 1926, the right of an accused
"to
be heard by himself" continues until the disposition of a motion for a
new
trial, and that "the trial court would not be warranted in ordering the
sheriff to take the petitioner to the state prison, pending the
determination
of his motion for a new trial." But in the case at bar, the court on
its
own motion ordered the appellant returned to Hamilton county on
December 12,
when his motion for a new trial and other motions were filed and ruled
upon. No
showing is made that appellant's constitutional right to be heard was
in anyway
infringed, or that he or his counsel were prevented from preparing a
proper and
complete motion for a new trial. On the contrary, the motion appears to
be
longer and more involved than it needed to be. The procedure that was
had in
this case, in this regard may have been necessary in the opinion of the
court,
either for the protection of the prisoner or to secure the state from
his
possible escape. No reversible error appears from the record on this
question.
Appellant
objected to certain testimony
of Dr. John K. Kingsbury. After stating his name, residence, age, etc.,
he
stated that he was called by telephone about 11:30 a. m., March 17, and
went
immediately to the Oberholtzer home, and there found Madge Oberholtzer
lying on
a bed in a state of shock, pale, body cold, rapid pulse, that her
clothing was
disheveled, her dress open in front exposing bruises on her chest; that
he made
a superficial examination through her clothing to determine possible
broken
bones (having been informed that she had been in an automobile
accident). He
was then asked if, in the course of his examination, she said anything
in
reference to whether or not she expected to die, and what it was. He
answered
(over the objections of appellant) that "She said that she didn't
expect
to get well; didn't want to get well; that she wanted to die." He was
then
asked, "Now doctor, just detail any conversation which you may have had
with her concerning her condition?" He then again related his
superficial
examination, and pressed her for an answer as to how it happened. At
this
point, appellant interposed an objection on the ground that it had not
been
shown that the deceased was in extremis, or that she thought that she
was going
to die soon, which objection was overruled. The doctor then proceeded
to relate
in answer to the question a narration, as told to him by Miss
Oberholtzer, of
all the events occurring from the time she left home until she
returned. This
narration was in substance the same as the written declaration of Miss
Madge
Oberholtzer, which will in substance hereinafter be set out. Mrs.
Eunice
Shultz, who was a roomer at the Oberholtzer home, had previously
testified that
the man who brought Madge home told her that "She was hurt in an
automobile accident, *** he did not think any bones were broken." That
she
saw the bruises on various parts of Madge's body, which she described.
That
"her clothing was mussed up and she was very dirty ***, that she looked
very white around the mouth and groaned" and that Madge said to her,
"Oh, Mrs. Shultz, I am dying." The rule of law governing the
admission in evidence of unsworn statements as dying declarations is
very
clearly and definitely settled in Indiana, and appellant has set it out
very
fully and concisely in his brief. See McKee v. State (1926) 198 Ind.
590, 154
N. E. 372; 21 Cyc. 976, 977; Watson v. State (1878) 63 Ind. 548; Morgan
v.
State (1869) 31 Ind. 193; Jones v. State (1880) 71 Ind. 66.
The
trial court had not only the statements of Miss Oberholtzer that she
was dying,
and that she could not get well, but the conduct, manner, symptoms, and
condition of Miss Oberholtzer, at the time she made the statements,
were
detailed to the court. It was said in the case of Williams v. State,
196 Ind.
84, 147 N. E. 153, 154, that, "The competency of this evidence [meaning
dying declaration] was a question for the trial court to be determined
by the
proof relative to the declarant's
state of mind at the time he made the declarations. The proof preceding
the
admission of such declarations must convince the trial judge that they
were
uttered under a sense of impending death without hope of recovery, or
that the
declarant fully believed that death was so near that all motives to
falsehood
were superseded by the strongest motives to strict veracity. *** Proof
of the
fact thus to be settled by the judge is not limited to the declarant's
statements alone, 'but it may be inferred from the general statements,
conduct,
manner, symptoms and condition of the declarant, which flow as the
reasonable
and natural results from the extent and character of his wound, or the
state of
his illness."' In the case of Hill v. State (1923) 194 Ind. 688, 141 N.
E.
639, 641, the court said: "The admissibility of these statements was
first
for the trial court to determine, and that decision will not be
disturbed
unless it is manifest that the facts did not warrant such ruling." Gipe
v.
State (1905) 165 Ind. 433, 75 N. E. 881; 1 L. R. A. (N. S.) 419, 112
Am. St.
Rep. 238. We cannot say that the admission of Dr. Kingsbury's testimony
was
manifestly erroneous.
Appellant's
points
9, 10, 11, 12, 13, 14, and
15 relate to admission of evidence over his objections. We have
examined each
of these objections, and find that they either relate to portions of
what was
admitted in evidence as a dying declaration, or evidence relating to
the crime
charged in count four of the indictment, on which appellant was
acquitted. We
find no reversible error in any of the court's rulings under these
points.
Appellant's points 17 to 43, inclusive, also relate to the court's
rulings in
the admission or rejection of certain evidence. Most of these
objections are
very technical, or relate to counts other than count one under which
appellant
was convicted. We find no reversible error in the action taken by the
court,
and we are of the opinion that appellant suffered no substantial injury
thereby.
Appellant's
sixteenth point is based
upon his motion to withdraw the submission and discharge the jury on
account of
certain remarks made by the trial judge in ruling upon the
admissibility in
evidence, of a conversation had between the witness and his daughter
(the deceased)
out of the presence of appellant, which conversation was sought to be
introduced as a dying declaration. The appellant interposed an
objection to the
question put by the state, "Now Mr. Oberholtzer, at that time, I wish
you
would tell the jury what she told you happened on this trip?" for the
reason that it was not shown that Madge Oberholtzer at the time labored
under
the belief that there was to be immediate dissolution, nor that she
believed
that her end was near, etc., and also that dying declarations are not
competent
in case of suicide. The remarks of the court, objected to, were
addressed to
the last part of the objection, and was a statement of the law as the
court
understood it, when dying declarations were admissible, when the
defendant made
the contention that the deceased committed suicide, and the remarks of
the
court were meant to answer appellant's contention that Madge
Oberholtzer
committed suicide, and therefore the evidence was not admissible. We
are
persuaded that the jury fully understood that the court was ruling on
the
admissibility of evidence and not instructing them in the law, which
they
should apply when deliberating upon the guilt or innocence of appellant
in the
jury room after the case was finally submitted to them. We cannot say
that we
approve of the practice generally of either arguments by counsel on
questions
of the admissibility of evidence or of the court discussing the law
relating
thereto. We think it better practice that the court have the jury
retire during
the discussion and ruling.
Appellant in
his
motion to vacate and set
aside the verdict raises the same question as he did in his motion to
quash. We
have heretofore set out our views on these questions, and we need not
say
anything further on this subject.
Appellant by
his motion for a new trial
challenges the sufficiency of the evidence to support the verdict, and
this
question necessitates a statement of the facts proven at the trial. In
substance, they are as follows:
The
victim of this homicide is Miss Madge Oberholtzer, who was a resident
of the
city of Indianapolis and lived with her father and mother at 5802
University
avenue, Irvington. She was twenty‑eight years of age; weighed about 140
pounds,
and had always been in good health; was educated in the public primary
and high
school and Butler College. Just prior to the time of the commission of
the
alleged acts in the indictment of appellant upon her, she was employed
by the
state superintendent of public instruction as manager of the Young
People's Reading
Circle.
Miss Oberholtzer was
introduced to appellant
by her escort at a banquet in the city of Indianapolis, January 12,
1925. This
introduction was their first meeting.
Appellant
resided at
‑‑ street, Irvington,
city of Indianapolis, at the time of the beginning of the actions
disclosed by
the evidence. His home was but a short distance; some two or three city
blocks
from the home of the Oberholtzers. After the meeting of appellant and
Miss
Oberholtzer at the banquet, he invited her several times for a
"date." She gave him no definite answer. She later consented to his
insistent invitation to take dinner with him at a hotel in
Indianapolis, and,
upon the occasion, he came to her home for her with his automobile and
they
dined together. Thereafter, appellant called her
several times by telephone, and once again she had
dinner
with him at the same hotel, at which another person was a third member
of the
party. Subsequent to the second dinner, Miss Oberholtzer was at
Stephenson's
home at a party with several prominent people, where both ladies and
gentlemen
were guests. The two principal actors to this tragedy did not see each
other
again until late Sunday evening, March 15, 1925. The afternoon of that
Sunday
she had been away from home and returned between nine and ten o'clock
in the
evening. Upon her return, her mother, Mrs. Matilda Oberholtzer,
informed her
that a telephone message came for her, which the mother delivered to
her
daughter, which was a piece of paper upon which there was the telephone
number,
Irvington 0492. Miss Oberholtzer called the number and Stephenson
answered the
call. He asked her to come to his home for he wished to see her about
something
very important to herself, and that he was leaving for Chicago and it
was
necessary that he see her before he departed. In the telephone
conversation,
Stephenson said to Miss Oberholtzer that he could not leave, but that
he would
send some one for her. Very soon thereafter, a Mr. Gentry, whom Miss
Oberholtzer had never seen, came for her and said he was from
Stephensons. She
walked with Gentry to Stephenson's home. When they arrived, they went
inside
the home and there saw Stephenson. He had been drinking. Stephenson's
chauffeur, whom he called "Shorty," was there also. As soon as she got
inside the house, she grew very much afraid when she learned that there
was no
other woman about and that Stephenson's housekeeper was away, or at
least not
to be seen. Immediately upon her arrival at Stephenson's home, he, with
the
other men, took her into the kitchen and some kind of drinks were
produced. At
this time another man by the name of Klinck came in by the back door.
She said
she did not want to drink, but Stephenson and the other men forced her
to
drink, and she submitted because she was afraid to refuse, and drank
three
small glasses of the liquor produced. The drinks made her very ill and
dazed,
and the effects of them caused her to vomit. Stephenson then said to
her,
"I want you to go to Chicago with me." She said she couldn't and
would not; and that she was much terrified and did not know what to do,
and
said that she wanted to go home. Stephenson replied to her, "No, you
cannot go home. Oh yes! you are going with me to Chicago. I love you
more than
any woman I have ever known." She then tried to call her home by
telephone, but could get no answer. Later, when she again tried to get
to the
telephone, they prevented her from so doing.
The men then took her up to Stephenson's
room, and Stephenson opened a dresser drawer which was filled with
revolvers.
He told each of the men to take one, and he selected a pearl handled
revolver
and had "Shorty" load it. Stephenson then said first to her that they
were going to drive through to Chicago. She told him that she would not
go.
Then Gentry called a hotel in Indianapolis, at Stephenson's order, and
secured
reservations in a drawing‑room for two persons. Then all of the men
took her to
the automobile at the rear of Stephenson's yard and they started the
trip. She
thought they were bound for Chicago, but did not know. She begged them
to drive
past home so that she might get her hat on a ruse that if she did get
inside
her home she would be safe from them. Before they left Stephenson's
house,
Stephenson said to Klinck, "You get in touch with," an officer,
"right away and tell him we are going to Chicago on a business deal to
make money for all of us." Then they started. Klinck was not one of the
party in the automobile. Stephenson and Gentry sat in the car all of
the time
with her until they got to the train. On the trip from Stephenson's
home to the
railway station in Indianapolis, the automobile was stopped at the
hotel, and
there "Shorty" went into the hotel and came back. While at this stop,
Stephenson and Gentry refused to let her out of the automobile. At this
time
she was in a dazed and terrified condition and feared that her life
would be
taken by Stephenson. He told her that he was the law in Indiana and
said to
Gentry, "I think I am pretty smart to have gotten her."
Stephenson,
Gentry,
and she boarded the train,
where all three went at once into the compartment or drawing‑room. She
was in
such condition that she could not remember all that happened after
that, but
she did remember that Gentry got into the top berth of the compartment.
Stephenson then took hold of the bottom of her dress and pulled it over
her
head, against her wishes, and she tried to fight him away, but was weak
and
unsteady. Then Stephenson took hold of her two hands and held her, but
she did
not have strength to get away, because what she had drunk was affecting
her.
Then Stephenson took off all her clothes and pushed her into the lower
berth.
After the train started, Stephenson got into the berth with her and
attacked
her, and, in so doing, he held her so she couldn't move and did not
know and
did not remember all that happened. She did remember that he chewed her
all
over her body; bit her neck and face; chewed her tongue; chewed her
breasts
until they bled and chewed her back, her legs, and her ankles, and
mutilated
her all over her body. She remembered of hearing a buzz early in the
morning,
and the porter calling them to get up for Hammond. Then Gentry shook
her and
said it was time to get up and that they were to leave the train at
Hammond,
Ind. At this time, she became
more conscious, and, before they left the train, Stephenson was
flourishing his
revolver. Then she asked him to shoot her. He held the revolver against
her
side and she said to him again to kill her, but he put the gun away in
his
grip. During the night on the train, she heard no sound from Gentry.
After the
car porter called them, Stephenson and Gentry helped her to dress; then
the two
men dressed and took her off the train at Hammond. After leaving the
train, she
was able to walk with the two men to the Indiana hotel. During the
night she
begged Stephenson to send a telegram to her mother. At the Indiana
hotel,
Stephenson registered for himself and wife under the name of Mr. and
Mrs. W. B.
Morgan, address, Franklin, and were assigned to room No. 416. Gentry
then
registered under the name of Earl Gentry, address Indianapolis, Ind.,
and was
assigned to room No. 417. The time they reached the hotel was about
6:30
o'clock in the morning. In the hotel lobby, when they entered, were two
colored
bell boys and two colored girls. The three, as guests of the hotel,
were taken
up the elevator and shown to their rooms. During this time Miss
Oberholtzer
continued begging Stephenson to send a telegram to her mother.
Stephenson then
made her write a telegram and told her what to say in it. After the
telegram
was written, Gentry took it and said he would send it immediately.
Stephenson
then laid down on the bed and slept, while Gentry put hot towels and
witch
hazel on her head and bathed her body to relieve her suffering.
Breakfast was
served
in their room. Stephenson
ate grapefruit, coffee, sausage, and buttered toast. She drank some
coffee, but
ate nothing. At this time, "Shorty" came in the room. He said to
Stephenson that he had been delayed getting them because he could not
find the
hotel where they were guests in Hammond. Then she asked Stephenson to
give her
some money, for she had none, so that she might purchase herself a hat.
Stephenson told "Shorty" to give her money, and he gave her $15 and
took her out in the automobile. "Shorty" waited for her while she
went into a store and purchased a hat, for which she paid $13.50. When
she
returned to the car, she asked "Shorty" to drive her to a drug store
so that she might purchase some rouge. He then drove the car to a drug
store,
where she purchased a box of bichloride of mercury tablets, put them in
her
coat pocket, and returned with "Shorty" in the automobile to the
hotel. During the morning at the hotel, the men got more liquor at
Stephenson's
direction. Stephenson said they were all going to drive on to Chicago,
and made
her write the telegram to her mother saying that they were going to
Chicago.
This was the telegram that Gentry took.
After she and
"Shorty" returned to
the hotel, she said to Stephenson to let her go into room 417, which
was the
room assigned to Gentry, so that she might lie down and rest.
Stephenson
replied, "Oh no, you are not going there, you are going to lie right
down
here by me." She then waited awhile and until she thought Stephenson
was
asleep and then went into room 417 and Gentry remained in room 416 with
Stephenson. There was no glass in room 417, so she procured a glass
from room
416, laid out eighteen of the bichloride of mercury tablets and at once
took
six of them, which was about ten o'clock in the morning of Monday,
March 16,
1925. She only took six of the tablets because they burnt her so.
Earlier in
the morning she had taken Stephenson's revolver and thought to kill
herself in
Stephenson's presence while he was asleep. It was then she decided to
try and
get poison and take it in order to save her mother from disgrace. She
knew it
would take longer for the mercury tablets to kill her. After she had
taken the
tablets, she lay down on the bed and became very ill. It was nearly
four o'clock
in the afternoon of Monday that "Shorty" came into the room and sat
down to talk to her. He said to her that she looked ill and asked her
what was
wrong, and she replied, "Nothing." He asked her where she had pain
and she replied that pain was all over her. He then said to her that
she could
not have pain without cause. When she asked him, "Can you keep a
secret?" He answered, "Yes." She said, "I believe you
can." Then she told him she had taken poison, but that he should not
tell
Stephenson. She had been vomiting blood all day. When she said to him
that she
had taken poison, "Shorty" turned pale and said that he wanted to
take a walk. He left the room, and, in a few minutes, Stephenson,
Gentry, and
"Shorty" came into the room very much excited. Stephenson then said,
"What have you done?" She answered, "I asked 'Shorty' not to
tell." Stephenson then ordered a quart of milk and made her drink it,
and
then she said to him and to the others that she had taken six
bichloride of
mercury tablets, and said, "If you don't believe it, there is evidence
on
the floor and in the cuspidor." Stephenson then emptied the cuspidor,
which was half full of clotted blood, into the bathtub and saw some of
the
tablets. She then asked Stephenson what he intended to do, to which he
replied,
"We will take you to a hospital and you can register as my wife. Your
stomach will have to be pumped out." He said that she could tell them
at
the hospital that she had gotten mercury tablets through a mistake
instead of
aspirin. To Stephenson's suggestion, she refused to comply as his wife.
Then it
was that Stephenson said that they would take her home. She then said
to
Stephenson that she would not
go home, but would stay at the hotel, and asked them to leave her and
go about
their own business or to permit her to register at another hotel under
her own
name. Stephenson then said, "We will do nothing of the kind. We will
take
you home," and that the best way out of it was for them to go to Crown
Point and there she marry him, to which suggestion Gentry said he
agreed it was
the thing to do. She refused. Stephenson then snapped his fingers and
instructed "Shorty" to pack the grips. They then departed from the
hotel. Stephenson assisted her down the stairs. Before leaving she
asked
"Shorty" to telephone to her mother. Stephenson said that he had
already called her. She asked what her mother said, and Stephenson
answered
that she said it would be all right if her daughter did not come home
that
night.
"Shorty"
checked out
of the hotel
for the three, and they then put her in the back seat of the automobile
with
Stephenson and the luggage and started for home. Her mind was in a daze
and she
was in terrible agony. After they had proceeded in the automobile a
short
distance, Stephenson ordered "Shorty" to take the auto license plates
off the car, which "Shorty" did, and Stephenson then directed him to
say, if questioned, that they had parked in the last town where the
auto plates
had been stolen. On the journey back to Indianapolis she screamed for a
doctor,
and said she wanted a hypodermic to relieve the pain, but the men
refused to
stop. She begged Stephenson to leave her along the road some place,
that some
one would stop and take care of her, and said to Stephenson, that he
was even
then more cruel to her than he had been the night before. He promised
to stop
at the next town, but did not. Just before reaching a town he would say
to
"Shorty," "Drive fast, but don't get pinched." She vomited
in the car all over the back seat and the luggage. Stephenson did
nothing to
make her comfortable upon the trip. He said to Gentry, "This takes guts
to
do this Gentry. She is dying"; and that he said to Gentry he had been
in a
worse mess than this before and got out of it. Stephenson and Gentry
drank
liquor during the entire trip. Stephenson said also that he had power
and that
he had made a quarter of a million dollars, and that his word was law.
Upon reaching
Indianapolis, they drove
straight to Stephenson's house by way of Thirty‑Eighth street and
Emerson avenue
in Indianapolis. When the car reached Stephenson's garage, Stephenson
said,
"There is someone at the front door of the house," and told
"Shorty" to go and see who it was. "Shorty" returned and
informed Stephenson that it was Miss Oberholtzer's mother. Then
Stephenson
said, "You will stay right here until you marry me." One of the three
men then carried her upstairs into the loft above the garage.
Stephenson did
nothing to relieve her pain while they left her in the garage until she
was
carried to her home about noon Tuesday, March 17, 1925. A big man, as
she says,
Mr. Klinck by name, shook her and awakened her and said to her that she
must go
home. She asked him where Stephenson was, and he told her he did not
know. She
remembered here that Stephenson had told her to tell every one that she
had
been in an automobile accident and then said to her, "You must forget
this, what is done has been done. I am the law and the power." He
repeated
to her several times that his word was law. On account of her agony and
suffering, she begged Klinck to take her home in Stephenson's Cadillac
car. He
said he would order a taxi, but finally said he would take her in
Stephenson's
car. Klinck then dressed her and carried her downstairs from the loft
and put
her in the back seat of the automobile and drove to the home of her
mother. She
asked him to drive in the driveway, which he did, and then carried her
into the
house and upstairs and placed her on her bed.
At
the time she was returned to her home by Klinck, her mother was away
from home.
There was in the house, at the time she returned, Mrs. Shultz, who
roomed at
the Oberholtzer home with her eldest son George. When Klinck carried
Miss
Oberholtzer into the house, Mrs. Shultz was preparing lunch in the
kitchen for
her son and heard a terrible groaning at the front door and then went
to the
dining room and saw Miss Oberholtzer being carried in. She then went to
the
stairway and saw her carried upstairs by a large man, whose name she
did not
know. When he came downstairs alone, she asked "Is Madge hurt?" He
replied, "Yes," and said she was hurt in an automobile accident. Mrs.
Shultz asked him how badly, and he replied he didn't think any bones
were
broken. Then, she said to him, "I will get a doctor quickly," and he
said, "Yes." Then Mrs. Shultz asked him who he was and he replied,
"My name is Johnson from Kokomo," and said, "I must hurry,"
and, hurrying on, kept his face toward the door. Mrs. Shultz got a good
look at
his face as he came down the stairway and recognized him and identified
him in
the courtroom at the trial of appellant. This man, who gave his name as
Johnson, was Earl Klinck.
Upon Klinck's
departure from the house, Mrs.
Shultz went up to see Miss Oberholtzer, whom she called Madge. The door
to her
room was closed and Mrs. Shultz knocked and heard Madge moaning, so she
opened
the door and went in and saw Madge on the bed. When she went in, Madge
was
groaning and was pale and could hardly speak or answer. Mrs. Shultz
noted the
bruises on Madge. The one on her right cheek was a dented wound of dark color; and on the left side
of her chest were similar wounds, which were deeper and darker in
color. The
wound on her breast and the wound Mrs. Shultz noted were similar in
shape and
appearance. She noted that Madge had bruises across her stomach, on her
limbs
and ankles, which bruises were very dark in color in some places. The
skin on
her left breast was open. Her clothing, a black velvet dress and black
shoes,
was very mussed up and very dirty. Her coat had dropped off there in
her room.
She had on no hat. She looked very white around her mouth and groaned.
"Oh!" and "Dear mother." She then said, "Oh, Mrs.
Shultz, I am dying."
Miss
Oberholtzer
told Mrs. Shultz to call
Doctor Kingsbury, which she did, and he arrived in less than an hour.
Mrs.
Oberholtzer, her mother, returned to her home about two o'clock in the
afternoon. Upon Dr. Kingsbury's arrival at the home, he went
immediately to see
Madge and found her lying on her bed. He said she was in a state of
shock. Her
clothing was in a disheveled state; her face was pale; her body was
cold and
her pulse rapid. Her dress lay open in the front on her breast exposing
bruised
areas over her chest, with two or three lacerations, little cuts on the
left
chest; her right check had a bruised elevated area, dark in color,
egg‑shaped
in formation. He had been informed that she had been injured in an
automobile
accident and made a superficial examination through her clothing to
determine
whether bones were broken. After such examination, he had a
conversation with
her in which she told him she did not expect to get well and that she
wanted to
die. He told her that he found that no bones were broken and asked her
how she
happened to be in this condition, to which she replied, "When I get
better, I will tell you the whole story." Because of the state of shock
and the condition, the doctor did not know how severely she was hurt or
injured
and pressed her for a reply. She then related to him the story, as
related
above, of the telephone call; her being escorted to Stephenson's home;
of the
drinking; of the ride to Hammond on the train; of her purchase of a hat
and the
poison and of her taking of the poison; and of the return trip to
Indianapolis;
of her pain and agony on the trip; how she begged Stephenson to procure
a
physician on the return and of his refusal to do so; of the arrival at
Indianapolis about midnight and of her being taken to Stephenson's
garage,
where she was held a captive until 11:30 a. m. the following morning,
and of
her being taken home by Klinck, who told Mrs. Shultz that she had been
injured
in an automobile accident, and when site heard Klinck say this to Mrs.
Shultz,
she, Madge, raised upon her elbow and called, "He lies"; how that she
had begged Stephenson, during the night in the garage after the return,
to call
a physician for her and that he did not grant her request.
After Dr.
Kingsbury
had heard her story, as
thus related, he made a careful physical examination after a Miss
Spratley, a
nurse, had been called to care for her, and after Miss Spratley had
removed the
patient's clothes and cleaned her. As a result of this careful physical
examination, Dr. Kingsbury found that Miss Oberholtzer had numerous
bruised
areas over her body, on her right cheek, over the chest, with
lacerations on
the left chest; a bruise as large as a dinner plate on the left hip and
buttock; bruised and torn tissues down at the point of the vagina; a
bruised
discoloration, bruised areas down over her limbs and ankles; body very
cold and
pulse rapid. The doctor then had the patient catheterized and obtained
some
urine for examination, which he took with him to his office. He then
washed her
stomach and obtained mucus and blood therefrom. Upon examination, her
urine
showed a large collection of albumin, casts, and blood cells, which
were all
evidence of acute kidney inflammation; that in his opinion, examination
of the
bruises and lacerations, the ones on the left breast and right cheek
were
inflicted by teeth; but he could form no opinion of the cause of the
wounds in
the vagina. He attended the patient until her death, April 14, 1925, in
Marion
county, Ind., during which time he attended the patient by calls three
to five
times each day, and called in other medical assistance. The lacerations
on the
left breast became infected, but had healed at the time of her death,
leaving
scars. The nature of the infection was the ordinary pus producer,
which,
ordinarily, was responsible for a pus infection, and was such an
infection as
might result from a bite.
Dr.
Kingsbury did not have any further conversation with her concerning any
other
matter than her progress or the type of medication, except on March
28th in the
early evening, when he advised her of her condition and outlook and,
when no one
else was present, he told her that she had no chance of recovery and no
chance
to get well, and that she was going to die, and told her why, which was
the
result of the things that had happened to her, the shock, the loss of
food,
loss of rest, and the action of the poison on her system and her lack
of early
treatment, and that the blood test, made that afternoon or the day
before, was
very much worse; and that her progress was unfavorable and that he was
thus
forced to inform her that she had no chance of recovery. She replied,
"That is all right doctor, I am ready to die. I understand you doctor.
I
believe you and I am ready to die."
The
other physicians, who were called in the case by Dr. Kingsbury, were
Dr. H. O.
Mertz of Indianapolis, who was a recognized authority
on treatment of kidney disorders; Dr. John Warvel of
Indianapolis, pathologist at the Methodist Hospital for some time; Dr.
J. A.
McDonald of Indianapolis, as a consulting physician; Dr. B. G. Jackson,
of
Indianapolis, specialist.
The
statement of Dr. Kingsbury in evidence is that the chances, both for
prolonging
the victim's life and for her getting well would have been better had
she had
treatment earlier, or within four or five hours after taking the
poison; the
delay caused by the automobile ride from Hammond to Indianapolis and
the
subsequent detention certainly tended to lessen her chances for
recovery, or to
shorten her life.
An
attorney, a friend of the Oberholtzer family, visited at the
Oberholtzer home
frequently from March 17th, the time of Miss Oberholtzer's return from
Hammond,
to April 14, 1925, the day on which she died. Miss Oberholtzer told the
attorney the story of the incidents related, and informed him that she
knew she
had no chance for recovery and was ready to die. From the statements so
made by
her to him, he prepared and had transcribed by typewriter a dying
statement,
which was read to her and in which she made corrections, and which was
afterwards again prepared and read to her and approved, and she signed
the
statement, saying therein that she had no hope of recovery; and that
she
believed and knew that she was about to die and that she took an oath
before a
notary public of the truth of the statements made in the dying
declaration.
The
testimony of the physicians, who were in attendance upon Miss
Oberholtzer as
their patient during portions of the time after her return from Hammond
until
her death, and the consulting physicians, by their testimony, showed
that the
minimum fatal dose of bichloride of mercury is two or three grains; but
larger
doses are not necessarily more apt to be fatal, but the danger rests
upon the
amount of poison absorbed and retained; the form in which taken,
whether
tablets or powder; the promptness of vomiting or purging, efficiency of
treatment; the fullness or emptiness of the stomach at the time the
poison is
taken by way of the mouth. Medical history shows that recoveries have
occurred
when as much as 500 grains were swallowed; the per cent. of fatalities
since A.
D. 1910 is about 25 per cent. and as low as 6 per cent. in one
hospital. The
average time for the life of the patient after having taken the poison
in a
fatal dose is from five to twelve days. Medical history shows that some
patients have died within a few hours after taking the poison, and the
longest
reported case in medical history is that the patient died the 25th day
after
taking the poison, and that all reported cases of patients who lived
beyond 25
days after taking the poison had recovered; that in a severe case,
where the
patient survived 29 to 30 days, as did Miss Oberholtzer, after taking
the
poison, and died, the consensus of opinion was stated that some other
factor
played a part in causing the death. The action of this poison, if the
patient
lives more than a few days, expresses itself in the kidneys and causes
an acute
nephritis of the kidneys to such an extent that there is a failure to
secrete
urine by those organs. Nephritis, caused by the poison if the patient
lives
beyond the twelfth day, diminishes, and the kidneys begin a process of
repair
and resumption of their function, and that medical history shows that
it
requires five to twelve days for a human being to die if the kidneys
are
completely out of function. The report of the post mortem upon Miss
Oberholtzer
in evidence showed that the physician making such examination found an
acute
nephritis, the effect of bichloride of mercury on the kidney,
degeneration of
other organs in the liver and heart muscle, irritation of
gastro‑intestinal
tract, abscess on one of her lungs, recently healed injuries on the
surface of
her body, four or five on the surface of her chest; one of which showed
evidence of previous supporation, which was caused by the entrance of
bacteria
in that wound. Portions of the liver and kidneys were subjected to
examination
by Dr. Harger of Indiana University School of Medicine, the result of
which,
according to his evidence, showed that the injury to the kidney by the
poison,
which injury was termed nephritis, had almost healed, and that the
kidney
tissues were in a state of advanced repair; the abscess in the lung
contained
pus or pus‑forming germs which are carried by the blood stream by which
circulation these germs, coming from an infected wound, cause blood
poisoning
or pyemia; the symptoms of such pyemia are weakness, a rapid pulse, and
fever.
The post mortem examination showed that the lacerated and recently
healed
infection over one of her breasts was the only one found from which
such pyemia
could probably have resulted. The injury made on her breast could have
been
infected by human teeth, and wounds so made are apt to be infected by
bacteria
on the teeth and the mouth of the person biting, or such bacteria may
be on the
skin which are carried in beneath the skin by the injury. The opinion
was that
the infection in the lungs came from the infected area on the chest,
and that
the kidneys were also infected by the same bacteria, which, on account
of the
poisoning, would be less able to resist infection by the pus germs. The
abscess
in the lung, the infection in the blood stream, and the infection in
the kidney
all tended to prevent recovery, and that it was highly probable that
such
infection contributed to the death of Miss Oberholtzer; but that she
would have
recovered from the effects of the mercurial poisoning had she not been
so
infected by the pus germs coming from the wound on her
chest, because the kidneys had already
accomplished a
large amount of repair sufficient to carry on their function. The
opinion was
that the wounds made on her body could not have been caused in any
manner by
mercuric chloride.
The
result of the post mortem showed no effects of influenza in her lungs.
There
was no condition in the esophagus, mouth, stomach, intestines, or liver
due to
mercuric chloride, which could of itself have resulted in death. It was
stated
that taking into consideration the facts given in evidence of the
taking of
possession of Miss Oberholtzer by appellant; her trip to Hammond; the
taking of
the poison; the return home, and the time intervening from then until
her
death, a delay of twenty‑four to twenty‑six hours in administering
remedies for
mercuric chloride poisoning, materially reduced her chances of recovery.
A
hypothetical question was asked of some of the physicians who had
attended Miss
Oberholtzer, the statements of which were the facts which had been
introduced
in evidence, with the addition of the following, that bichloride of
mercury
tablets, which she purchased and had taken, were, "perhaps 7 1/2 or 7
3/8
grains each." The final sentence of the hypothetical question was:
"Upon this hypothesis, Doctor, state what, in your opinion, was the
cause
of her death?" One doctor answered: "She died from an acute
infection, superimposed upon an acute nephritis, in my opinion." And
answering further as to what was the nature of the acute infection, his
answer
was "that she had Staphylococci (pus) infection in her kidney." And
answered further, in reference to mercuric nephritis, that delay in
medical
treatment affected her chance of recovery, in that it would allow more
absorption of the drug and result in greater damage to the kidney. One
of the
other physicians testified: "The cause of her death, in my opinion, was
some secondary complication superimposed upon nephritis." And further,
that but for this infection, superimposed upon the mercuric nephritis,
"I
believe she would have recovered," and further that the delay of
twenty‑four
to twenty‑six hours in giving medical and nursing attention greatly
increased
chances of fatality.
Appellant
was
arrested by a party of four
officers at his room in a hotel in Indianapolis. One of the officers
knocked at
the door of appellant's room, and, upon appellant opening the door, one
of the
officers asked him, "If Mr. Stephenson was in." Appellant answered,
"No, Mr. Stephenson is not in, but I am his secretary, Mr. Butler."
Upon further questioning, the man who opened the door and who said he
was Mr.
Butler, admitted that he was Mr. Stephenson, the appellant. The hotel
clerks,
the maid, and the bell boys of the Indiana Hotel, Hammond, and the
hotel clerk
of the Washington Hotel, Indianapolis, where appellant had lodging, and
where
he was arrested, were witnesses, and whose testimony was corroborative
of the
facts in relation to what happened in the two hotels as narrated. The
pullman
conductor and pullman porter of the car, in which appellant and the
others made
the journey to Hammond, testified. The conductor identified Earl Klinck
as the
person from whom he took up three tickets in the Union Station in
Indianapolis.
He testified of the three, including appellant and Miss Oberholtzer,
occupying
the drawing‑room in the pullman car; that he heard the woman vomiting
in the
toilet room which is connected with the drawing‑room; that appellant
ordered
the other men to wet a towel in cold water to bathe her face; that,
while in
the room preparing the beds, appellant showed his revolver to the
pullman
porter, and identified the taller one of the two men in the courtroom,
who
occupied the drawing‑room that trip, as Gentry, who was indicted with
this
appellant.
Appellant
very
earnestly argues that the
evidence does not show appellant guilty of murder. He points out in his
brief
that, after they reached the hotel, Madge Oberholtzer left the hotel
and purchased
a hat and the poison, and voluntarily returned to his room, and at the
time she
took the poison she was in an adjoining room to him, and that she
swallowed the
poison without his knowledge, and at a time when he was not present.
From these
facts he contends that she took her life by committing suicide; that
her own
act in taking the poison was an intervening responsible agent which
broke the
causal connection between his acts and the death; that his acts were
not the
proximate cause of her death, but the taking of the poison was the
proximate
cause of death. In support of his contention, he cites State v. Preslar
(1856)
48 N. C. 421; Reg. v. Donovan (1850) 4 Cox 399; Gipe v. State (1905)
165 Ind.
433, 75 N. E. 881, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238;
Treadwell v.
State (1884) 16 Tex. App. 560; Bush v. Com. (1880) 78 Ky. 268; State v.
Shelledy (1859) 8 Iowa, 477; Hendrickson v. Com. (1887) 85 Ky. 281, 3
S. W.
166, 7 Am. St. Rep. 596, and other cases from other jurisdictions. In
the case
of State v. Preslar supra, the defendant in the nighttime fought with
his wife,
and she left to go to the home of her father. When she reached a point
about
two hundred yards from her father's home, she, for some reason, did not
want to
go in the house till morning, laid down on a bed cover, which she had
wrapped
around her, till daylight. The weather was cold and the next morning
she could
not walk, but made herself known. She afterwards died. The court held
that the
wife without necessity exposed herself, and the defendant was not
guilty. In
the case of Reg. v. Donovan, supra, the defendant struck his wife, and
she went
to the window to call for help and fell out. Defendant
was charged with throwing his wife out of the
window with intent to kill. The court held that the evidence must show
that by
his treatment he intended to make her jump out of the window. In the
case of
Gipe v. State, 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N. S.) 419, 112
Am. St.
Rep. 238, the defendant broke into a house with intent to rob. The
deceased ran
out of the house and jumped into a well and remained there, and died
from
exposure. The indictment charged death by violence, to wit, beating and
striking. The court held that the evidence did not show the killing was
by
force and violence as charged, and did not follow the allegations in
the
indictment, and for that reason the cause was reversed. In Treadwell v.
State,
supra, the defendant shot the deceased, who lived from November till
the
following September. A few weeks before his death he had heart attack
and
convulsions. The court found that he died from heart attacks, and the
wounds
inflicted by defendant had nothing to do with the death. In the case of
State
v. Shelledy, supra, the defendant with others went in a body to the
home of one
W. armed with revolvers, and forcibly took possession of W. and bound
his arms
so as to render him helpless, and in the presence of W. avowed their
purpose to
kill W. and placed him in a hack and started to the timber with him,
and when
on the banks of the Iowa river he leaped from the wagon into the water,
and
they permitted him to drown, while standing by, and made no effort to
rescue
the said W., where by reasonable effort they might have done so. The
court held
that the defendant would be guilty of murder under these circumstances.
In Bush
v. Com., 78 Ky. 268, defendant wounded one V. who was taken to the
hospital and
treated by a physician who communicated to her scarlet fever from which
disease
she died. The court held in that case, that if the wound is not
dangerous, and
when in the natural course of events a new and intervening cause
appears and
causes the death, there is no guilt. If death was not connected with
the wound
in the regular chain of cause and consequence, there ought not to be
any
responsibility. If a new and wholly independent instrumentality
interposed and
produced death, the wound is not the proximate cause. The principle
laid down
in the last case is well supported by decided cases and text‑book
writers, and
we agree that the reasoning is sound and that it was properly applied
in those
cases. It is quite clear that in the Bush Case there was no causal
connection
between the wound inflicted and the death. But we do not believe that
the rule
stated in the above case is controlling here. In the recent case of
Wilder v.
Russell Library Co. (1927) 107 Conn. 56, 139 A. 644, 646, 56 A. L. R.
455, the
question of causal connection was discussed. In that case, the
commissioner
awarded compensation to the claimant as a dependent of the deceased.
The
deceased had been librarian at the library of respondent employer, and,
as
such, was under the supervision of its trustees, in full charge of the
library.
She was very conscientious in her work, temperamentally zealous for the
good of
the library, working many hours overtime at her home evenings. She also
engaged
in outside activities, which was occasioned by her position as
librarian. The
various works which she engaged in are set out in the opinion of the
court,
which we will not take the time or space to set out here. Finally her
health
broke, which was followed by a nervous breakdown, and, while mentally
irresponsible, committed suicide. The court found that the worry,
anxiety, and
excessive nervous and mental activity in connection with the library
work were
all contributing factors in the ultimate mental breakdown. Her
physical,
mental, and nervous disorder were all attributable to that work and
traceable
to her employment. The court said: "Before he can make a valid award
the
trier must determine that there is a direct causal connection between
the
injury, whether it be the result of accident or disease, and the
employment.
*** Was the employment a proximate cause of the disablement? ***" the
court held that it was, and affirmed the award. See Wharton on
Homicide, § 374;
Rex v. Beech (1912) 23 Cox Cr. Law Cas. 181; Wilder v. Russell Library
Co.
(1927) 107 Conn. 56, 139 A. 644, 56 A. L. R. 455. In the case of Rex v.
Beech,
supra, the prosecutrix was the village nurse and lived alone. At 11:45
p. m. on
an evening in November, the appellant came to her house when she was in
bed. He
entered the house by breaking a window and went upstairs to the bedroom
occupied by the prosecutrix. The door was locked, and the appellant
threatened
to break it open if the prosecutrix would not let him in. She refused,
and the
appellant then tried to burst open the door. The prosecutrix called out
that if
he got in he would not find her in the room, and, as the appellant
continued
his attack upon the door, the prosecutrix jumped out of the window
sustaining
injuries. The prosecutrix also testified that the appellant had
attempted to
interfere with her on a previous occasion when she had threatened to
take
poison if he touched her. The court approved the proposition as stated
by the
lower court as follows: "*** Whether the conduct of the prisoner
amounted
to a threat of causing injury to the young woman; was the act of
jumping the
natural consequence of the conduct of the prisoner and was the grievous
bodily
harm the result of the conduct of the prisoner." The court held that,
if
these questions were answered in the affirmative, he would be guilty.
In Rex v.
Valade (Que.) 22 Rev. de Jur. 524, 26 Can. Cr. Cas. 233, where the
accused
induced a young girl under the age of consent to go along with him to a
secluded apartment, and there
had criminal sexual intercourse with her, following which she jumped
from a
window to the street to get away from him, and was killed by the fall.
The
accused was held guilty of murder. Bishop in his work on Criminal Law,
vol. 2,
(9th Ed.) page 484, says: "When suicide follows a wound inflicted by
the
defendant his act is homicidal, if deceased was rendered irresponsible
by the
wound and as a natural result of it." See, also, People v. Lewis (1889)
124 Cal. 551, 57 P. 470, 45 L. R. A. 783. We do not understand that by
the rule
laid down by Bishop, supra, that the wound which renders the deceased
mentally
irresponsible is necessarily limited to a physical wound. We should
think the
same rule would apply if a defendant engaged in the commission of a
felony such
as rape or attempted rape, and inflicts upon his victim both physical
and
mental injuries, the natural and probable result of which would render
the
deceased mentally irresponsible and suicide followed, we think he would
be
guilty of murder. In the case at bar, appellant is charged with having
caused
the death of Madge Oberholtzer while engaged in the crime of attempted
rape.
The evidence shows that appellant, together with Earl Gentry and the
deceased,
left their compartment on the train and went to a hotel about a block
from the
depot, and there appellant registered as husband and wife, and
immediately went
to the room assigned to them. This change from their room on the train
to a room
in the hotel is of no consequence, for appellant's control and dominion
over
the deceased was absolute and complete in both cases. The evidence
further
shows that the deceased asked for money with which to purchase a hat,
and it
was supplied her by "Shorty," at the direction of appellant, and that
she did leave the room and was taken by Shorty to a shop and purchased
a hat
and then, at her request, to a drug store where she purchased the
bichloride of
mercury tablets, and then she was taken back to the room in the hotel,
where
about 10 o'clock a. m. she swallowed the poison. Appellant argues that
the
deceased was a free agent on this trip to purchase a hat, etc., and
that she
voluntarily returned to the room in the hotel. This was a question for
the jury,
and the evidence would justify them in reaching a contrary conclusion.
Appellant's chauffeur accompanied her on this trip, and the deceased
had,
before she left appellant's home in Indianapolis, attempted to get
away, and
also made two unsuccessful attempts to use the telephone to call help.
She was
justified in concluding that any attempt she might make, while
purchasing a hat
or while in the drug store to escape or secure assistance, would be no
more
successful in Hammond than it was in Indianapolis. We think the
evidence shows
that the deceased was at all times from the time she was entrapped by
the
appellant at his home on the evening of March 15th till she returned to
her
home two days later, in the custody and absolute control of appellant.
Neither do
we think the fact that the deceased took the poison some four hours
after they
left the drawing‑room on the train or after the crime of attempted rape
had
been committed necessarily prevents it from being a part of the
attempted rape.
Suppose they had not left the drawing‑room on the train, and, instead
of the
deceased taking poison, she had secured possession of appellant's
revolver and
shot herself or thrown herself out of the window of the car and died
from the
fall. We can see no vital difference. At the very moment Madge
Oberholtzer
swallowed the poison she was subject to the passion, desire, and will
of
appellant. She knew not what moment she would be subjected to the same
demands
that she was while in the drawing‑room on the train. What would have
prevented
appellant from compelling her to submit to him at any moment? The same
forces,
the same impulses, that would impel her to shoot herself during the
actual
attack or throw herself out of the car window after the attack had
ceased, was
pressing and overwhelming her at the time she swallowed the poison. The
evidence shows that she was so weak that she staggered as she left the
elevator
to go to the room in the hotel, and was assisted by appellant and
Gentry. That
she was very ill, so much so that she could not eat, all of which was
the
direct and proximate result of the treatment accorded her by appellant.
We
think the situation no different here than we find in the Beech Case or
the
Valade Case, supra. To say that there is no causal connection between
the acts
of appellant and the death of Madge Oberholtzer, and that the treatment
accorded her by appellant had no causal connection with the death of
Madge
Oberholtzer would be a travesty on justice. The whole criminal program
was so
closely connected that we think it should be treated as one
transaction, and
should be governed by the same principles of law as was applied in the
case of
Rex v. Beech and Rex v. Valade, supra. We therefore conclude that the
evidence
was sufficient and justified the jury in finding that appellant by his
acts and
conduct rendered the deceased distracted and mentally irresponsible,
and that
such was the natural and probable consequence of such unlawful and
criminal
treatment, and that the appellant was guilty of murder in the second
degree as
charged in the first count of the indictment.
Appellant
complains of instruction No.
41, given by the court of its own motion. This instruction reads as
follows:
"The law presumes that one intends the natural and probable
consequences of
his acts, whether he actually intended or anticipated them or not. Of
course
such presumption cannot be indulged in and carried to the extent of
making one guilty of homicide on account
of voluntary suicide of a sane person, where such suicide may have been
induced
or caused from remorse, grief, shame or humiliation growing out of some
past
action of himself or herself and another to which he or she had
assented
voluntarily. But if in such case, there be no voluntary assent on the
part of
such person taking his or her life, to such past action which caused
such
remorse, grief, shame and humiliation but that he or she was compelled
to
participate in such action causing such remorse, grief, shame or
humiliation
through force, threats, coercion and restraint of another. Then it is
for the
jury to determine whether or not the suicide in such a case, after
considering
all the evidence relating thereto, is the natural and probable
consequence of
the acts of such other person. If it is the natural and probable
consequence of
such act or acts, it is felonious homicide, otherwise it is not
felonious
homicide."
It may be questioned whether this
instruction applies to count one or count two of the indictment, but
even
though it applies to count one we do not think it erroneous when read
in the
light of the allegations of count one and in the light of the evidence.
The
words "the suicide," as stated by appellant in his brief, were used
in this instruction in their common and usually accepted meaning, and
the jury must
have so understood the court to mean when he said "the suicide," it
meant the act of self‑destruction, as shown by the evidence, and if
they find
that the suicide was the natural and probable result of the acts of
appellant
they necessarily had to find that the acts of appellant resulted,
first, in
rendering the deceased distracted and mentally irresponsible, for the
willful
and deliberate destruction of one's own life is not the natural and
probable
action of one who is in sound mind. While it may be true that a person
while in
sound mind may deliberately and willfully take his own life, yet we
cannot say
that such an act is either the natural or probable thing for him to do.
While
on the other hand, it is the natural or at least the probable act of a
person
who has been rendered distracted and mentally irresponsible by the
unlawful and
criminal acts and conduct of another. We
do not think the court erred
in giving
said instruction.
Instruction
No.
43, given by the court of
his own motion, told the jury that one who inflicts an injury on
another is
deemed by the law to be guilty of homicide, if the injury contributes
mediately
or immediately to the death of such other. The fact that other causes
contribute to the death does not relieve the actor from responsibility.
While
it is true that a person cannot be killed twice, yet it is equally true
that
two persons can contribute to cause the death of another, in which case
each
will be responsible for such death.
We
think the evidence justified the court in submitting the question to
the jury,
as there was evidence that the deceased died from the joint effect of
the
injuries inflicted on her, which, through natural cause and effect,
contributed
mediately to the death. We think the proposition of law stated
in this
instruction is well supported by authority. "The general rule, both of
law
and reason, is, that whenever a man contributes to a particular result,
brought
about, either by sole volition of another, or by such volition added to
his
own, he is to be held responsible for the result, the same as if his
own
unaided hand had produced it. The contribution, however, must be of
such
magnitude and so near the result that sustaining to it the relation of
cause
and effect, the law takes it within its cognizance. Now, these
propositions
conduct us to the doctrine, that whenever a blow is inflicted under
circumstances to render the party inflicting it criminally responsible,
if
death follows, he will be holden for murder or manslaughter, though the
person
beaten would have died from other causes, or would not have died from
this one,
had not others operated with it; provided, that the blow really
contributed
mediately or immediately to the death as it actually took place in a
degree
sufficient for the law's notice." Bishop on Criminal Law, § 653; 2
Whart.
Am. Crim. Law, § 941; Michie, Homicide, Vol. 1, p. 11, § 5;
Bishop on Criminal
Law, Vol. 2, § 639 (2), p. 483; Brill Enc. Crim. Law, Vol. 2,
§ 606; Kee v.
State (1873) 28 Ark. 155; Dumas v. State (1909) 159 Ala. 42, 49 So.
224, 133
Am. St. Rep. 17; Bishop v. State (1905) 73 Ark. 568, 84 S. W. 707;
People v.
Lewis (1899) 124 Cal. 551, 57 P. 470, 45 L. R. A. 783; People v.
Williams
(1915) 27 Cal. App. 297, 149 P. 768.
Appellant's
requested instruction No. 26 was,
in effect, a directed verdict in favor of appellant on count one. There
was no
error in refusing this instruction.
Instructions
Nos.
58, 68, 84, 96, and 111,
tendered by appellant and refused by the court, had to do with the
question of
reasonable doubt. The jury was
sufficiently advised on this subject by
instructions Nos. 16, 18, 19, and 20, given by the court, and for the
court to
read additional instructions on this question would have been only to
repeat,
in substance, what the court had already told the jury.
Instruction
No. 78,
requested by appellant and
refused in substance, told the jury that each juror must be convinced
beyond a
reasonable doubt of appellant's guilt before they were entitled under
the law
to return a verdict of guilty. This
proposition was fully covered by
the
court's own instruction No. 17.
Appellant says the court erred in refusing his
tendered instruction No.
83,
which reads as follows: "The court instructs you that if you should
find
Madge Oberholtzer had been assaulted and raped or had been assaulted
and beaten
with intent to rape, by the defendants, or either of them, and that
said act by
the defendants had already been completed and ended, and if you find
that no
attempt was being made by the defendants, or either of them, to repeat
said act
or acts, and if you further find that said Madge Oberholtzer under such
circumstances voluntarily swallowed a fatal dose of bichloride of
mercury
poison with intent to take her own life, because she felt aggrieved on
account
of said prior acts of the defendants, or either of them, and that said
bichloride of mercury caused her death, then you would not be warranted
in
finding the defendants guilty, and you should find them not guilty."
This,
in effect, is
a peremptory instruction,
and we think it entirely too narrow. All facts stated in this
instruction if
true would not entitle appellant to an acquittal. If this instruction
be the
law, there a person would go acquitted if he succeeded in completing
his crime
before the act of self‑ destruction was done, regardless as to what
effect such
acts might have upon the victim, or without regard to the question of
natural
or probable result of such criminal acts. We think this instruction was
correctly refused.
Appellant's
instructions Nos. 85, 99,
101, 116, 131, 132, 133, 145, 147, 148, 149 were covered by
instructions given
and no error resulted from such refusal.
There
was no
reversible error in refusing
appellant's tendered instructions Nos.
129, 135, 137, 138, and 140, as they are directed to the crime alleged
in count
four, and appellant was convicted on count one, and in effect was found
not
guilty under count four.
We
have examined all of appellant's alleged errors, and find none that
would
justify a reversal of this cause.
Judgment affirmed.
MARTIN, J.
(dissenting in part, concurring in
part, dissenting in the conclusion).
Charges
contained in
the several counts. Count
3 of the indictment charged that appellant did "unlawfully and
feloniously
touch, beat, strike, bite and wound the body and person of the said
Madge
Oberholtzer with the unlawful and felonious intent then and there and
thereby
forcibly and against her will the said Madge Oberholtzer to ravish and
carnally
know, from which said assault and from which touching, biting, striking
and
wounding and as a result thereof the said Madge Oberholtzer did then
and there
sicken, languish and die," and "did unlawfully and feloniously in the
manner and form and by the means aforesaid the said Modge Oberholtzer,
kill and
murder. ***"
Count 2
of the
indictment charged that the
appellant "did then and there unlawfully, feloniously, purposely and
with
premeditated malice kill and murder one Madge Oberholtzer by then and
there
unlawfully and purposely causing to be administered to the said Madge
Oberholtzer by her own hand a certain deadly poison commonly called
bichloride
of mercury which the said Madge Oberholtzer acting under fear and
duress and
the compulsion of said David C. Stephenson, Earl Gentry, and Earl
Klinck, did
then and there swallow into her stomach and body by which she then and
there
thereby died."
Count 4
of the
indictment charged that
appellant "did then and there unlawfully, feloniously, purposely and
with
premeditated malice kill and murder one Madge Oberholtzer", and
"being then and there able to provide such medical attention, services
and
assistance *** did *** unlawfully, feloniously and forcibly imprison,
restrain
and prevent the said Madge Oberholtzer from such medical assistance
services
with the unlawful and felonious intent *** to kill and murder the said
Madge
Oberholtzer."
The
verdict of the jury finding the appellant guilty only on the first
count of the
indictment amounted to a finding in his favor on the foregoing three
counts.
Count
one of the
indictment narrated at length
the facts which the state proposed to prove, following in the main the
statements contained in decedent's dying declaration. (The first nine
pages of
the seventeen page statement of the facts proven at the trial set out
in the
prevailing opinion is identical with the written dying declaration of
the
deceased, Madge Oberholtzer, except that its relation of those facts
are in the
third person, while her narration of them is in the first person.)
Count one
charged "that thereafter she the said Madge Oberholtzer did *** die
from
the effects of her wounds inflicted as aforesaid and said poison taken
aforesaid," and concluded that appellant "did, by the manner and
means aforesaid, her, the said Madge Oberholtzer, unlawfully,
feloniously and
with premeditated malice, kill and murder." There is no charge in this
court that the acts of appellant were purposely done; it being
apparent, and
the state conceding, that it is not a charge of willful murder under
that portion
of section 347, c. 169, Acts 1905, section 2412, Burns' Ann. St. 1926,
which
provides that "whoever, purposely and with premeditated malice ***
kills
any human being, is guilty of murder," but is a charge under that
portion
of the same section which provides that "whoever *** in the
perpetration
of, or attempt to perpetrate, a rape *** or by administering poison, or
causing
the same to be administered,
kills any human being, is guilty of murder."
The
two theories relied upon to sustain the conviction. The state in its
brief, and
in the oral argument which was held on April 30, 1928, sought to uphold
the
verdict of second degree murder and the judgment of the lower court
imposing
life imprisonment on two separate theories: First, that a contributing
cause of
Miss Oberholtzer's death was an abscess in her lung resulting from an
infection
in a bite on her breast inflicted by appellant during the course of his
assault
upon her; and, second, that the death was caused by the poison, and
that
Stephenson was legally responsible for her having taken the poison. The
prevailing "per curiam" opinion of the court apparently adopts the
second theory; but on the ground that the deceased was mentally
irresponsible
when she took the poison and that the acts of appellant were the cause
of such
mental irresponsibility. The per curiam opinion does not discuss the
first
theory, notwithstanding the sharp conflict between the parties with
reference
thereto, and I assume that such theory is rejected by the court, in
which action
I concur. At the risk of extending this opinion beyond its proper
limits I
shall discuss both these theories, which are ably briefed by the
parties, since
the points decided in this novel case have a far‑reaching effect on the
criminal law as it relates to the crime of murder.
Verdict
of guilty
based on infliction of a
bite during the perpetration of a rape could be sustained if the bite
caused
death (1) directly or (2) indirectly through development of infection,
unaffected by intervening human action. The bite or wound on deceased's
breast
inflicted during the perpetration, or attempt to perpetrate, a rape,
and if
such wound caused the death directly, or if it caused the death
indirectly,
through a chain of natural effects and causes unchanged by human
action, a
verdict of guilty based thereon could be sustained. Hall v. State
(1928) 199
Ind. 592, 159 N. E. 420; Kelley v. State (1876) 53 Ind. 311. In other
words, if
an infection developed from the bite, which infection unaffected by any
intervening human action caused the decedent's death, then the bite can
be considered,
in law, the cause of death. In a note to Hall v. State, supra, a number
of
cases are collected in which this principle of law has been applied.
The
state failed to prove that infection from the bite on deceased's breast
was the
cause of an abscess on her lung or infection in her kidneys. Even if
infection
from bite was the cause of such secondary infection, medical testimony
that
death was caused by infection "superimposed" upon poisoning must be
considered in light of the fact the poisons was taken subsequent to the
infliction of the bite.
The
fact that deceased, by reason of the bite, may have been more
susceptible to
the fatal effects of the poison does not render the bite the proximate
cause of
death unless the taking of the poison was the natural result of the
bite.
Dr.
Kingsbury, one of the principal witnesses for the state, testified that
the
lacerations on deceased's left breast became infected. He was asked,
"Were
they infected at the time of her death?" and answered, "No they had
healed, there were scars there." He was asked the nature of the
infection,
and replied, "oh, the ordinary pus producer, ordinarily staphylococci,
sometimes‑‑ it is nearly always responsible for pus infection." The
trained nurse who attended deceased testified that she sterilized the
abrasions, and that they healed up. The evidence shows that the bite on
deceased's breast was not a serious wound calculated to destroy or
endanger
life, nor was the infection resulting therefrom shown by the testimony
of any
witness to have been serious enough, of itself, to destroy life. It
therefore
cannot be contended that death resulted directly from the bite; but it
is
contended by the state that such bite and infection is a responsible
cause of
death, for the reason that deceased might have, or would have,
recovered from
the effects of the poison which she afterwards took, except for the
existence
of the infection from the bite. There is opinion evidence by
physicians, called
as expert witnesses for the state, that deceased might have, or would
have,
recovered from the mercurial poisoning had it not been for an infection
which
developed, and which may have resulted from the previously inflicted
bite.
This
opinion evidence must be considered in connection with the other
medical evidence,
not in conflict therewith, regarding the bite and the infection. The
evidence
of the state does not establish the fact that the abscess in the lung
or the
infection in the kidney discovered by a post mortem examination was the
result
of infection from the bite on the breast. Dr. Warvel, witness for the
state,
testified: "I would not say certain that because there was an abrasion
on
one of the breasts and an abscess in one of the lungs that it would
necessarily
follow that one communicated germs to the other unless I could prove
there was
no other avenue of infection." It was undisputed that the deceased had
recently suffered from the flu (influenza), from which such an abscess
might
have resulted.
Physicians
as expert
witnesses for the state
testified that an infection could be carried from a surface wound to
the lung
by the blood stream; that such a process was known as
septicemia, or infection of the blood (blood poisoning),
and results in the development of pyemia or localization of the
infection; and
that such a condition would be accompanied by a marked rise in the
temperature
of the patient and could be definitely established by a microscopic
examination
of the patient's blood. The detailed record of deceased's temperature
from
March 17 to April 14, inclusive, as given by the nurse from her
records, shows
a gradual and not a marked rise of temperature, and although it clearly
appears
that the patient's blood was tested and examined, there was no
testimony that
the blood ever showed a condition of septicemia caused by the
staphylococci
infection on the breast. It thus appears that while the state proved
that an
abscess on the lung might or could result from an infection resulting
from a
bite on the breast, it did not establish as a fact that the infection
of this
decedent's lung was carried by her blood stream from an infected
breast, nor
did the state prove in the language of its own expert that "there was
no
other avenue of infection."
Drs.
Moon, McDonald, and Mertz, as expert witnesses for the state, in answer
to a
hypothetical question approximately eight hundred words in length,
propounded
by the prosecuting attorney, testified that the cause of death in such
a
hypothetical case was "toxic nephritis due to mercuric chloride
ingestion
with a terminal *** superadded infection"‑‑"an acute staphylococci
infection superimposed upon an acute nephritis in the kidney," etc. Dr.
Warvel, another of the state's experts, testified that in his opinion
the cause
of death in such hypothetical case was "some secondary complication"
or infection, the nature of which he was unable to state, "superimposed
upon nephritis." These expert witnesses on cross‑examination stated
that
they had testified at a former hearing (on a petition by the defendant
to be
let to bail) that they then diagnosed the death of decedent to have
been due to
bichloride of mercury poisoning. Two of them there testified that the
lacerations on the breast did not produce or were not the cause of
death. One
of them, in reporting to the coroner the result of the autopsy, stated
that he
found on the lung a "localized solitary superative pulmonary lesion,
possibly tuberculous."
We
have pointed out that the state did not prove that the staphylococci
infection
referred to resulted from the bite on deceased's breast. But even if
the
evidence of the state could be considered as establishing the fact that
death
resulted, not from the poison alone, but from the effect of an
infection from
the bite on the breast superimposed from the nephritis caused by the
poison,
then such proof would necessarily have to be considered in connection
with a
consideration of the facts regarding the time of the infliction of the
bite and
the time of the taking of the poison, in order to determine the
proximate cause
of deceased's death. From the viewpoint of these medical experts of the
state,
the infection may have been "superimposed" upon the nephritis; but
from the viewpoint of a court in determining the guilt or innocence of
one
charged with murder by infliction of a bite (which was not in itself a
dangerous wound), such bite and the infection resulting therefrom could
not be
"superimposed" upon the dangerous condition arising from poison which
was afterwards taken, so as to make the bite and not the poison the
proximate
cause of the death.
The
fact that deceased, by reason of the bite and its resulting infection,
may have
been more susceptible to the fatal effects of the poison than she
otherwise
would have been, does not render the poison any the less the proximate
cause of
the death, 2 Brill Cyc. Cr. L. 1017, and does not render the bite,
which was
not a serious wound, the proximate cause of the death, unless the
taking of the
poison was the natural result of the wound. See discussion infra.
If
the state had proved that infection in the lung and kidneys resulted
from the
bite on the breast, and that appellant inflicted the bite after the
deceased
took the poison, and an infection which resulted naturally from the
bite then
supervened or was superimposed upon the nephritis, a different case
would be
presented for our consideration.
Where
wound is not dangerous and death results from cause subsequently
arising (not
at the direction of the one inflicting the first wound) the supervening
cause
is the proximate cause of death. Where a wound is inflicted by one
person on
another, which is not in itself dangerous or necessarily fatal, and
death
results, not from such wound directly, nor from such wound indirectly
"through a chain of natural effects and causes, unchanged by human
action," but death results from some cause subsequently arising not at
the
direction or connivance of the one inflicting the first wound, and but
for such
subsequently arising cause death would not have resulted, the
infliction of the
first wound is not the proximate cause of death, but the supervening
cause is
the proximate cause and the one responsible for the death. Bush v. Com.
(1880)
78 Ky. 268; Livingston v. Com. (1857) 14 Grat. (Va.) 592; People v.
Elder
(1894) 100 Mich. 515, 59 N. W. 237; Quinn v. State (1914) 106 Miss.
844, 64 So.
738; Treadwell v. State (1884) 16 Tex. App. 560; Walker v. State (1902)
116 Ga.
537, 42 S. E. 787, 67 L. R. A. 426; State v. Johnson (1893) 118 Mo.
491, 24 S.
W. 229, 40 Am. St. Rep. 405; Notes, 16 Ann. Cas. 579; 8 A. L. R. 520.
"Contributing"
cause
of death must
constitute a proximate contribution to sustain criminal
responsibility. The state cites numerous cases as
supporting its proposition that "when a cause for which one is
responsible
contributed to death, he is not relieved from criminal responsibility
by reason
of the fact that another or other causes for which he is not
responsible also
contributed to such death," and in 29 C. J. 1079, it is said: "If an
injury caused by defendant contributed to the death, defendant is
responsible
although a subsequent mortal wound inflicted independently by another
also
contributed thereto." The use of the words "contributes" and
"contributed" in the foregoing statements is apt to prove confusing,
unless a review is made of the cases upon which the statement is based,
from
which review it is seen that a proximate contribution is necessary to
sustain
criminal responsibility. In most of the cases cited, the first wound
was a
mortal wound, and in practically all of the cases the court held that
the
injury inflicted by the defendant, who was found guilty, was the
proximate
cause of the death. Of the six cases cited by Corpus Juris, five were
cases
where men were killed in fights as the result of joint acts of two
assailants.
Unlawful
act must be
the proximate cause of
death. "To render a person responsible for the death of another *** his
unlawful act or omission must be the proximate cause of the death of
the person
killed." 2 Brill Cyc. Cr. L. 1013‑1014. In Dunville v. State (1919) 188
Ind. 373, 123 N. E. 689, 690, in an appeal from a conviction for
manslaughter,
it was held that "it is always necessary that the evidence show that
the
unlawful act is the proximate cause of the death." The part of the
manslaughter act (section 2416, Burns' Ann. St. 1926), under which that
conviction was had, provides that "Whoever unlawfully kills any human
being without malice, express or implied, *** involuntarily, but in the
commission of some unlawful act, is guilty of manslaughter. ***" The
part
of the statute under which this prosecution is based, section 2412
Burns' Ann.
St. 1926, has been quoted supra, and it is likewise necessary to
sustain a
conviction under it that the evidence show that the act of the
defendant in the
perpetration of, or attempt to perpetrate, the felony specified is the
proximate
cause of the death. In the case at bar the evidence is not sufficient
to show
that the bite or the infection resulting therefrom was the proximate
cause
responsible for decedent's death, but it appears that bichloride of
mercury
poisoning was the supervening, proximate, and responsible cause
thereof. [FN]
FN The foregoing
statement is made, based only
on a
consideration of that evidence properly admissible to support count one
of the
indictment on which the conviction was had, and disregarding the
evidence
introduced to support count four on which there was no finding of
guilty. The
doctors testifying for the state said that in their opinion the delay
in
securing medical attention for deceased greatly increased the chances
of
fatality and tended to shorten the life of deceased. On a retrial
(which I
believe should be ordered) the question might arise as to whether the
mercurial
poisoning or the delay in furnishing medical attention constitutes the
proximate cause of the death; but such question is not before us on
this
appeal. The granting of a new trial would return this cause to the lower
court for a trial de novo on
all counts of the indictment the same "as if no trial had been had,"
section 2324, Burns' Ann. St. 1926; Veatch v. State (1878) 60 Ind. 291,
295;
State v. Balsley (1902) 159 Ind. 395, 65 N. E. 185; Ex Parte Bradley
(1874) 48
Ind. 548.
Responsibility
for
deceased's having taken poison. While the state maintains that the
wound
inflicted during the attempted rape and the infection resulting
therefrom was
the cause of death and that appellant was guilty of murder by reason
thereof,
"even though the poison as a concurrent cause of death were taken by
her
without legal responsibility therefor by appellant"; yet it also
contends
that appellant is guilty of murder for the reason that he is legally
responsible for deceased's having taken the poison.
It is
unnecessary to
consider here the much‑mooted question as to whether suicide is a
crime, or to
consider the criminal liability of one who advises or aids another to
commit
suicide. See 37 Cyc. 521. Our statute, as already noted, provides that
"Whoever *** by administering poison, or causing the same to be
administered, kills any human being, is guilty of murder." See People
v. Roberts
(1920) 211 Mich. 187, 178 N. W. 690, 13 A. L. R. 1253. There was no
evidence
that appellant "administered" the poison or "caused the same to
be administered" to
deceased, or that at the time the deceased took the poison she was
under any
restraint or compulsion by appellant, which would cause her act to be
considered in law the act of the appellant.
Where,
upon
deliberation, one commits suicide because of shame, humiliation, or
remorse,
the one who caused such mental state, although he may be morally
responsible
for the death in the sight of God, is not guilty of murder under the
law,
unless he in some way procured, advised, compelled, assisted, or
exercised
control over the person performing the act. See 1 Hale, Pleas of Crown
429; 1
East P. C. c. 5, § 13; Com. v. Webster (1854) 5 Cush. (Mass.) 295,
52 Am. Dec.
711; Reg. v. Murton (1862) 3 F. & F. 492.
It is
said that the
rule of the early common law that a homicide to be criminal must have
resulted
from corporeal injury (see 29 C. J. 1080) has been gradually modified
and
greatly relaxed in modern times, and that fright, fear, nervous shock,
or
producing mental disturbances can now be made the basis of a
prosecution for
homicide. 13 R. C. L. 846. This may be true in a proper case, but I do
not
believe that such a case has been made out here, nor can I follow the
reasoning
(nor in view of Potter v. State (1904) 162 Ind. 213, 70 N. E. 129, 64
L. R. A.
942, 102 Am. St. Rep. 198, 1 Ann. Cas. 32, can we approve the holding)
of the
case usually cited to sustain the statement made in R. C. L., supra,
viz., In
re Heigho (1910) 18 Idaho, 566, 110 P. 1029, 32 L. R. A. (N. S.) 877,
Ann. Cas.
1912A, 138 (which case held that where a bystander observed an
altercation
between two men, one of whom was armed, and died as the result of
fright,
terror, and nervous shock, the man who was armed was guilty of
manslaughter
under an Idaho statute defining the crime).
There
is no charge
in count one of the indictment, under which the conviction was had (as
there is
in count two), that deceased took the poison "acting under fear and
duress
and the compulsion of said D. C. Stephenson," but the charge in count
one
is that deceased "distracted with pain and shame so inflicted upon her
by
said defendants did procure and swallow into her stomach a large
quantity of
deadly poison, to‑wit, bichloride of mercury." We must presume from the
fact that the jury made no finding of guilty under count two that it
did not
consider the evidence sufficient to show that deceased destroyed her
life under
a well‑grounded apprehension of immediate violence or injury from
appellant so
as to make her act "the act of him who compelled the deceased to take
the
step." Regina v. Pitts (1842) 1 Carrington & Marshmans 284;
Hendrickson v. Com. (1887) 85 Ky. 281, 3 S. W. 166, 7 Am. St. Rep. 596;
State
v. Shelledy (1859) 8 Iowa, 477, 506. See, also, Rex v. Valade (Que.) 22
Rev. de
Jur. 524, 26 Can. Cr. Cas. 233; Norman v. State (1902) 20 App. D. C.
494, and
other cases cited infra.
Taking
of poison as
a natural consequence of the rape, attempted rape or bite. Only one
argument by
which the state sought to sustain the verdict of guilty under the first
count
of the indictment remains for consideration, viz., that one who
inflicts a
wound is held to contemplate and be responsible for the natural
consequence of
his act, and that at the time appellant committed the rape, or the
attempted
rape, he was bound to anticipate deceased's act of taking bichloride of
mercury. I do not find any evidence to justify a finding that the
taking of
poison by deceased was such an act as a reasonable person under similar
circumstances would have committed, Henderson v. State (1914) 11 Ala.
App. 37,
65 So. 721; State v. Preslar (1856) 48 N. C. 421; Reg. v. Donovan
(1850) 4 Cox,
397; Gipe v. State (1905) 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N.
S.) 419,
112 Am. St. Rep. 238, or was a natural consequence of the rape (or
attempted
rape, or the bite made during the same) which the appellant was bound
by law to
contemplate. Quinn v. State, supra; Treadwell v. State, supra; Bush v.
Com.,
supra; Livingston v. Com., supra; Note 8 A. L. R. 520. The facts in
this case
do not bring it within the rule laid down in the cases where the direct
cause
of death was an act of the deceased reasonably due to defendant's
unlawful
conduct, such as Rex v. Valade (Que.) 22 Rev. de Jur. 524, 26 Can. Cr.
Cas.
233, where the accused induced a young girl under the age of consent to
go
alone with him to a secluded apartment and there had criminal sexual
intercourse with her, following which she jumped from a window to the
street to
get away from him and was killed by the fall; Norman v. State (1902) 20
App. D.
C. 494, where death was caused by falling into a canal while attempting
to
escape from violent assault; Hendrickson v. Com., supra, where accused
used
such force and violence as to cause his wife from fear of death or
great bodily
harm to leave the house on a cold night, whereby she died of exposure.
See,
also, Thornton v. State (1899) 107 Ga. 683, 33 S. E. 673; Adams v.
People
(1886) 109 Ill. 444, 50 Am. Rep. 617; State v. Preslar, supra.
After a
consideration of all the foregoing propositions by the court, the per
curiam
opinion was adopted, which holds that the allegation in the indictment
that
Miss Oberholtzer was "distracted with pain and shame" when she took
bichloride of mercury was sufficient to charge that she was mentally
irresponsible when she took the poison; and that the evidence was
sufficient to
show the infliction of physical and mental injuries which rendered the
deceased
mentally irresponsible at the time of her "suicide." I do not believe
the adjective clause of the indictment "distracted with pain and
shame" is equivalent to a charge that the deceased was of unsound mind
or
was mentally unbalanced. Charges in an indictment must be clear and plain, and if the grand jury had
intended to make a charge that the appellant had by his acts caused
Madge
Oberholtzer to become mentally unbalanced and of unsound mind they
would have
done so by a definite and certain charge to that effect.
The
trial was not
had on any such theory, and there is no evidence to indicate that at
any time
the mind of the deceased was not clear and sound. We cannot assume
otherwise
without proof. An assumption that every person who commits suicide is
insane as
well as an unqualified holding that one who mistreats another so as to
cause
insanity is responsible for the criminal acts thereafter committed by
such
person, would lead to most dangerous legal consequences. There was no
expert
testimony to the effect that Miss Oberholtzer was at any time mentally
irresponsible, and her own very carefully prepared "dying
declaration" does not state nor does it indicate any unsoundness of
mind
at the time she took the poison. On the contrary, such declaration
minutely
describes her mental processes, and narrates and describes the events
with
great particularity; even to detailing the menu of Stephenson's
breakast. It
appears very clearly from her statement that she committed suicide
because of
"shame, humiliation or remorse." She expressly stated that she
decided to take her life "in order to save my mother from disgrace,"
and that she wanted to kill herself "in Stephenson's presence." The
evidence shows she was not accompanied by Stephenson, Klinck, or
"Shorty," the chauffeur, or under their control when she was in the
store where she purchased the hat or in the drug store where she
purchased the
poison, and that she returned without any compulsion to their rooms at
the
hotel where she took the poison.
I do
not believe
that the evidence is sufficient to sustain a finding of guilty under
the first
count of the indictment, and for that reason, as well as other reasons
hereinafter stated, believe that the judgment should be reversed, with
directions
to grant appellant a new trial.
Conferring
of
jurisdiction upon change of venue. I agree with the conclusion reached
by the
per curiam opinion on the question as to whether the Hamilton circuit
court had
jurisdiction of the cause, the person, and the subject‑matter in this
prosecution. Appellant's contention is that jurisdiction over the cause
and
over his person could only be gained by the Hamilton circuit court by
the
depositing in that court of a transcript of the proceedings had in the
criminal
court of Marion county, duly authenticated by the signature of the
clerk and by
the seal of said criminal court; that the signature of the clerk to the
certificate of the transcript was omitted and does not appear in the
transcript, and that therefore there was in fact no transcript at all,
and that
the Hamilton circuit court did not acquire any jurisdiction. Appellant
does not
contend that the criminal court of Marion county did not grant the
change of
venue and order the case sent to Hamilton county for trial, nor does he
contend
that the transcript of the record transferred to the Hamilton circuit
court was
incorrect in any particular. The transcript was complete and in proper
form,
except for the signature of the clerk to the certificate.
Jurisdiction
over a
defendant is not conferred upon the court to which a change of venue is
taken
by the signature on the certificate to the transcript of the clerk of
the court
in which the case was pending before the change, but it is conferred by
the
order of the court which grants the change and directs where the cause
is sent
for trial. The change of venue and of jurisdiction is not completed
until the
requirements of the statute are met, with respect to the depositing of
the
transcript in the office of the clerk of the court to which the change
is
granted (sections 2239, 2240, Burns' Ann. St. 1926), but where a
transcript,
regular in form and sealed with the seal of the court, is deposited in
the
court to which the cause is sent, the jurisdiction of that court
attaches, and
the lack of the signature of the clerk of the other court, in the
absence of
any attack on the authenticity of the transcript, will be deemed a
technical
informality which might have been amended in the trial court, and which
renders
the transcript defective, but not void. A proper certification and
attestation
for a transcript is the signature of the clerk and the affixing of the
seal of
the court; but the absence of such signature of the clerk to the
certificate
could have been easily cured, and it does not appear that such defect
in any
way prejudiced any of the appellant's rights.
The
appellant did
not raise any jurisdictional question in the Hamilton circuit court,
but
acquiesced in the jurisdiction exercised by it and proceeded to trial
therein.
Appellant points out that no acts on the part of the defendant in a
criminal
case involving the deprivation of life or liberty can serve to waive
that which
the law makes essential, or that which the statute prescribes as
necessary in
order that the court may acquire jurisdiction; but it is also well
settled that
a party, by asking for a change of venue and appearing to the action in
the
court to which it is removed, waives his right to complain of any mere
irregularity in the matter of the change. The Hamilton circuit court
properly
exercised jurisdiction in this case.
This
appellant, in
an application to the Laporte circuit court for a writ of habeas corpus
for
release from the Indiana state prison, presented the same question in
this
regard that is here decided. That court denied his application, and
upon appeal
to this court its judgment was
affirmed. Stephenson v. Daly (1927) 200 Ind. 196, at page 202 (see
syllabus
points 10, 11, and 12), 158 N. E. 289.
Admissibility of
dying declarations. The principal questions in this case upon
the
admissibility
of evidence arose upon the admission of the written dying declaration
of
deceased, and the testimony of a doctor to whom deceased made oral
statements
to the same effect as those contained in the written dying declaration.
The law
concerning the admission in evidence of dying declarations has been
discussed
in this appeal as exhaustively perhaps as in any case that has ever
been before
it. I therefore deem it important to state somewhat more fully than has
been
done in the per curiam opinion the questions involved and the law
relating
thereto. I concur in the decision reached by the court as to the
admissibility
of the written dying declaration, but believe that the testimony of the
doctor
was admitted without the necessary foundation being laid therefor.
Deceased's written
dying declaration. The written dying declaration of the deceased
consisted of
more than three thousand words. It was signed by her on March 28, ten
days
after her trip to Hammond and seventeen days before her death. It
appears from
the evidence that just before it was read to and signed by her, her
physician
for the first time advised her that she was going to die. He told her
that she
had no chance for recovery; that she was going to die, and told her
why; that
the blood test that afternoon showed a worse condition and that her
condition
was unfavorable, and that he wanted her to understand it. He gave as
reasons to
her that she could not recover that her kidneys were broken down and
destroyed
from the poison, and that poison had made such a spread in her system
that she
could not recover. She said, "Doctor *** I understand you, I believe
you
and I am ready to die." This, together with other evidence which is in
the
record of her statements, and of her physical condition as a result of
the
poison, meets the two essential requirements for an admissible dying
declaration hereinbefore stated, viz., that the declarant shall be in
extremis
and shall have abandoned hope of recovery and be under a firm
conviction that
death is inevitable and near at hand.
The
dying
declaration was prepared for the deceased's signature by Mr. Asa J.
Smith, an
attorney and friend of the Oberholtzer family, and others who were
assisting
him. Mr. Smith went to the Oberholtzer home and saw deceased on the
afternoon
of the day she returned home. At the request of deceased's mother he
had helped
to search for her on the previous night, March 16 (after her departure
from
home on the night of March 15 and the receipt by her mother of a
telegram from
her dated at Hammond), and had gone with the mother to appellant's home
during
the search. He was employed by the deceased's father to bring a civil
suit
against appellant, or "do whatever was necessary in the matter." Mr.
Smith visited deceased practically every day from March 17, to March
28. Three
or four days before March 28 he began the preparation of the dying
declaration.
He made notes from memory of what deceased at different times had told
him of
the events which occurred on her trip to Hammond and reduced the same
to
writing in his law office. Miss Ermina Moore, an intimate friend of
deceased,
on March 26 took to Mr. Smith's office notes which she had made, and
they also
were incorporated by him into the written statement. He selected the
words and
built up the phrases to make what he thought was the substance of what
deceased
had told him. This he read over and corrected, and then in the presence
of Miss
Moore and Mr. Griffith D. Dean, his law office associate, he dictated
to a
stenographer, from what he had written, the entire statement. Two days
later
(March 28) Mr. Smith and Miss Moore went through this draft of the
statement
and again corrected it. Then Mr. Smith again rewrote a part of it in
longhand,
then redictated to the stenographer the entire statement, except the
pages he
had rewritten. About 6 p. m. the same day at deceased's bedside, with
Mr. Dean,
Miss Moore, and Dr. Kingsbury also present, Mr. Smith read the
statement to
deceased very slowly and distinctly. He stopped in the course of the
reading
after each sentence for her affirmance or denial, and made some
corrections
which she desired. As he proceeded with his reading, he asked deceased
if she
understood it and if it was correct, and she said "I do understand it
***
it is correct," except at certain times she said things were not
correct
and Mr. Smith made, in ink, the changes she desired. He showed her the
place to
sign and told her if it was true she could sign it and she said, "I
will
sign it," and did so.
The
exception to the
rule against hearsay evidence which permits the introduction and
consideration
in felonious homicide cases of dying declarations was introduced into
the law
less than two hundred years ago as matter of the fullest necessity or
public
policy to detect and punish those guilty of crime, since by their
crime,
usually committed in secret, offenders may still the tongues of the
only
persons in the world who could affirm their guilt. The reasons against
admitting such evidence (that they do not [usually] bear the sanction
of an
oath, are not subject to the test of cross‑examination, eliminate the
right of
the accused to confront the witness, are subject to misconstruction by
auditors
or amanuensis who are ignorant, inattentive, or criminally motivated,
that they
may permit a conviction on the statement of one whose body
is weakened and whose mind may be disordered by the
panic of momentary death, and who may harbor malice and vindictiveness)
were
only put aside on the theory that the immediate approach of death,
under the
sanction of a moral sense of certain and just retribution, silences
every
motive to falsehood, and by the most powerful considerations induces
the mind
to speak the truth, creates a situation so solemn and awful as to
exclude the
supposition that the party making them could have been influenced by
malice,
revenge, or any conceivable motive to misrepresent, and amounts to an
obligation equal to that imposed by a solemn oath in a court of
justice. See
cases collected in Note, 56 L. R. A. 353.
It was
not shown,
nor was it necessary to show, that deceased was under a firm conviction
of
impending death at the time she held the conversations with the
attorney from
which he constructed the statement, for it does appear that at the time
she
adopted and signed the statement as her dying declaration she had
abandoned
hope of recovery and had a firm conviction of impending death. 30 C. J.
257.
The fact that the declaration was prepared by a lawyer who was
interested in a
civil action against appellant should render such a declaration subject
to the
closest scrutiny; but we cannot say that the declaration was rendered
inadmissible by the fact that he prepared it. In the absence of any
evidence of
improper conduct on the part of the attorney such objection to the
dying
declaration would not go to its admissibility, but to its weight, which
is
solely a question for the jury. 1 R. C. L. 547. In Harper v. State
(1902) 79
Miss. 575, 31 So. 195, 56 L. R. A. 372, a dying declaration was held to
have
been erroneously admitted; the court (after doubting the authenticity
of the
declaration) holding that there was not sufficient evidence of a solemn
sense
of impending dissolution when the deceased signed the statement. The
statement had
been prepared by deceased's attorney, who feared a fatal result might
ensue, to
be signed by the patient whenever he came to think he would die. The
court
said: "Moreover, we think a declaration prepared by a person in full
possession of his mental faculties, and in confident hope of recovery,
to be
signed in the possible event of subsequent conviction of a fatal
termination,
is too much tainted to be admissible in evidence." This dicta is not
applicable to the facts here, nor do we approve it unqualifiedly as a
correct
statement of law.
Appellant's
objection to the admission of State's Exhibit No. 1 (the dying
declaration) was
addressed "separately and severally as to each word, phrase, sentence,
paragraph, part, conclusion and opinion" and stated at length his
objection to the declaration as a whole (that the corpus delicti had
not been
established independently of the declaration, that the declaration is
one of
suicide, that it shows that death was not the proximate result of
defendant's
acts, that it was made nineteen days before death and when deceased was
not in
extremis and when she had not abandoned hope and was not under a sense
of
impending dissolution, that no causal connection was shown between the
defendant's act and her death, that it is a recital of past events and
the
conclusions and opinions of the declarant and is not limited to
declarations to
identify defendant with the circumstances producing and attending
death). The
objection was sufficient to raise the general questions concerning the
declaration as a whole which we have already discussed, but it was not
sufficient as an objection to specific parts of the declaration. An
objection
generally to "every word, phrase, sentence," etc., does not point out
to the court with sufficient certainty the part or parts of the
statement which
the party deems objectionable.
The
court properly
struck out of the statement sentences telling of deceased being
"impressed
with Stephenson's power and influence"; of her being "attracted by
his apparent influence and power with the state officials and his
general
political influence"; of what he said to her at dances, and what he
said
when he drove her to her home "while the legislature was in session";
because it is not permissible to show by a dying declaration matters
occurring
anterior to, and not immediately connected with, the homicide, nor to
show the
conduct of the parties at another time nor to show the opinions and
mental
conclusions of the deceased. Montgomery v. State (1881) 80 Ind. 338, 41
Am. Rep.
815; Binns v. State (1874) 46 Ind. 311; Jones v. State (1880) 71 Ind.
66. For
the same reason the court, if proper objections had been made, should
have
struck out of the statement those sentences stating that deceased
"first
met David C. Stephenson at the banquet given for the Governor at the
Athletic
Club early in January 1925," telling of her various dinner engagements
with appellant at a hotel, and of a party at his home "with several
prominent people."
Appellant points out specifically in his brief
numerous
statements in the dying declaration which he says are merely
"conclusions,
opinions and recitals of mental operations of deceased." A mere
conclusion
or expression of opinion or belief by a dying person is not admissible
as a
dying declaration, Boyle v. State (1886) 105 Ind. 469, 5 N. E. 203, 55
Am. Rep.
218; Montgomery v. State, supra; Binns v. State, supra, but where a
dying
declaration contains unimportant expressions of opinion or conclusions
such as
a number of those statements here objected to are, and which taken in
connection with the entire declaration are not prejudicial, their
admission is
not error. Cleveland v. Com. (1907) 101 S. W. 931, 31 Ky. Law Rep. 115.
Dying declarations are limited to a recital of
facts connected with the
res
gestae of the alleged crime. Under the several counts of the indictment
under
which appellant was tried, the alleged criminal act was murder in the
perpetration of, or attempt to perpetrate, a rape, in the administering
of
poison, and by restraining and preventing medical assistance and
services;
hence the rather wide scope of the dying declaration here was not
improper.
Deceased's oral
statements to physician. The doctor, John F. Kingsbury, after
stating
his
residence, age, and professional training, testified that he was called
by
telephone at 11:30 a. m. March 17, and went immediately to the
Oberholtzer
home; that he found Miss Madge Oberholtzer lying on a bed in a state of
shock,
pale and cold, and with a rapid pulse; that she was dressed in clothing
in a
disheveled state, her dress being open in the front exposing bruises on
her
chest, and that he made a superficial examination through her clothing
to
determine possible broken bones (having been informed that she had been
injured
in an automobile accident). He was then asked if, in the course of his
examination, she said anything in reference to whether or not she
expected to
die, and what it was. He replied (over objection) that "she said she
didn't expect to get well, didn't want to get well, that she wanted to
die." He was then asked: "Now doctor, just detail any conversation
which you may have had with her concerning her condition?" He replied:
"I asked her how badly she was hurt; she said she didn't know. I then
made
a hasty examination of her, found no bones broken and told her I found
none,
and I asked her how it happened. She said: 'When I get better I will
tell you
the whole story.' Because of her state of shock, and being thrown in on
to that
condition without preparation, I didn't know how severely she was hurt
or
injured and pressed her for a reply to my question, she then said. ***"
At
this point, appellant again interposed an objection including the
ground that
it had not been shown that deceased was in extremis, or that she
thought she was
going to die soon, which objection was overruled. The doctor then
proceeded to
relate in an answer that occupies 145 lines of the typewritten record a
narration, as told him by Miss Oberholtzer, of all the events occurring
from
before the time she left home until she returned.
The
only other
evidence which had been adduced, up to the time Dr. Kingsbury
testified, that
would bear on the admissibility of deceased's statement to the doctor
as a
dying declaration was that given by Mrs. Eunice Shultz, who was a
roomer at the
Oberholtzer home. She testified that the man who brought Madge home
told her
that "She was hurt in an automobile accident *** he said he did not
think
any bones were broken"; that she saw the bruises on various parts of
Madge's
body which she described. In reply to the following question by the
state,
"Now Mrs. Shultz what, if anything, did Madge say to you when you came
in
the room?" Mrs. Shultz testified, "She said 'Oh I am dying Mrs.
Shultz. ***"' The witness further testified that Madge "groaned 'Oh'
and 'Dear Mother,"' and told her to call a physician.
The
conditions
essential for the admission in evidence, as an exception to the hearsay
rule,
of unsworn statements of a dying person regarding the circumstances of
the
homicide in the trial of one accused thereof are (1) that the person
making the
dying declaration must be in extremis, i. e., beyond hope of recovery;
and (2)
that such person must have abandoned all hope of recovery from the
injury
alleged to have been inflicted by the accused, and be under a firm
conviction
that his death is inevitable and is near at hand. McKee v. State (1926)
198
Ind. 590, 154 N. E. 372; Morgan v. State (1869) 31 Ind. 193; Watson v.
State
(1878) 63 Ind. 548; Jones v. State (1880) 71 Ind. 66; Archibald v.
State (1890)
122 Ind. 122, 23 N. E. 758; Gipe v. State (1905) 165 Ind. 433, 75 N. E.
881, 1
L. R. A. (N. S.) 419, 112 Am. St. Rep. 238; Williams v. State (1907)
168 Ind.
87, 79 N. E. 1079. These conditions were not proven to have existed at
the time
the deceased made the statements to the physician which were here
admitted in
evidence. There was no testimony that at that time there was no hope of
deceased's recovery or that she was near death. Deceased stated that
she didn't
know how badly she was hurt, and the doctor testified that at that time
he did
not know how severely she was hurt or injured. Regarding deceased's
mental
attitude toward her condition, she told the doctor that she didn't
expect to
get well and didn't want to get well, and said to Mrs. Shultz "I am
dying," yet she had Mrs. Shultz send for the doctor and said to the
doctor
"When I get better I'll tell you the whole story."
Contradictory
statements as to expectation of impending death have been held to
prevent the
admission of a statement as a dying declaration, 30 C. J. 266, citing
Bilton v.
Terr., 1 Okl. Cr. 566, 99 P. 163.
The
appellee
contends that the words last above quoted "could not have been meant
literally"; that deceased spoke the words to avoid further questioning
by
the doctor; and that regardless of such words the deceased at that time
was
under a firm conviction of impending death. It is possible that even
where a
declarant expressed an opinion that he would recover, the circumstances
may
show that such was not his real belief. 30 C. J. 266. Also the fact
that a
declarant said he would not recover or would die does not show that he
was
without hope and expected a speedy dissolution; his statements in this
regard
also may be overcome by the surrounding circumstances.
30 C. J. 265, 266; Morgan v. State, supra.
Prior
to the
introduction in evidence of the testimony of Dr. Kingsbury regarding
what
deceased told him, there had been no evidence received showing wounds
or
injuries so serious or illness so critical that an inference would
necessarily
arise that the declarant was under a pending sense of dissolution. See
Gipe v.
State, supra; McKee v. State, supra. The only witnesses who had
testified were
the mother of deceased and Mrs. Shultz, and no circumstances had been
detailed
in evidence which would serve to meet the conditions stated above under
which
the statements of deceased to Dr. Kingsbury would be admissible as
dying
declarations of Madge Oberholtzer.
It may
be noted
further that at the time Dr. Kingsbury testified concerning what
deceased told
him, no proof had been offered by the state to show that Madge
Oberholtzer
died, or the date when she died. The only thing in evidence, at that
time, in
which her death was referred to, even indirectly, was a question to
Matilda
Oberholtzer, "What relation did you sustain to Madge Oberholtzer during
her lifetime?" which was answered "I am her mother." The death
did not occur until about a month later than the conversation detailed
by Dr.
Kingsbury. While the admissibility of such evidence does not depend
upon the
length of the interval between the declaration and the death, Jones v.
State
(1880) 71 Ind. 66, 73, 74; Wigmore, Evidence (2d Ed.) § 1441, yet
such length
of time is a proper element to be considered in determining whether the
declarations were made under a sense of impending death. State v.
Colvin (1910)
226 Mo. 446, 126 S. W. 448; State v. Schmidt (1887) 73 Iowa, 469, 35 N.
W. 590.
Statement made by
the court to the jury. I cannot concur in the holding of the per
curiam
opinion
regarding the remarks of the trial judge in ruling on the admissibility
of
evidence (Appellant's sixteenth point). This court disapproves the
practice of
such discussion by the trial court in the presence of the jury, but by
affirming the judgment holds that such remarks were not reversible
error.
The
state in
examining, as a witness, the father of the deceased asked him to relate
what
deceased told him had happened on her trip to Hammond. An objection was
made by
appellant on several grounds stated; the principal one being that a
proper
foundation for its introduction as a dying declaration had not been
laid.
Thereupon, in the presence of the jury and over the objection of the
appellant,
the court made the following statement: "On the question of dying
declarations, gentlemen, this is the court's view: I think I can
explain that.
The dying declaration may be based on conditions rather than
statements; I
mean, not rather than statements but as well as statements. She may
make a
statement to the effect that she does not think she is going to get
well, she
is sure she is going to die; that would form the basis of a dying
declaration.
It has also been held that if her condition is such that she must know
that she
can't get well, then that is sufficient upon which to base a dying
declaration,
even though she might not utter a word about that condition. The
counsel
stated, perhaps unthoughtedly, because he did state she more than once
said to
him that she did not think she would get well, she made it the first
time and
at the time he tried to encourage her, this language was, 'Daddy, I
can't get
well'; she made that several times. Now the question is not provable
only in
murder cases that is true, but the theory is that, while it is not
sufficient
in a case of suicide, but this comes perhaps a little nearer by the
line, along
this line. In England there are crimes for persons to commit suicide,
but here
is the situation: it is not a question we are trying of suicide, but
the
complaint proceeds that murder has been committed indirectly, by
causing the
suicide, now the question is, whether that can be done, and I am
letting this
go to the jury for the purpose because I think it can. Here is the
situation,
suppose it is suicide, this is for the jury, I am not deciding the
question but
that is the reason I am ruling on the evidence. Suppose‑‑and I am not
saying
anything about what kind of a lady Miss Oberholtzer was, but suppose
she was a
virtuous woman, suppose anybody, I don't take her case, suppose any
woman was a
virtuous woman and she was attacked for the purpose of committing rape,
if that
be true, assuming that, not as being true, but just for the purpose of
the
argument. She might be confronted with this condition, I have either
got a
chance to lose my virtue or life, suppose her virtue was dearer to her
than her
life, suppose that was true, would the law say to her, no, you can't
take your
life, you must submit your virtue. The question is, must these men
anticipate
this suicide as a reasonable result of their acts. Suppose I attack a
virtuous
woman, what must I presume? Will the law allow me to presume she does
not
attach greater value to her virtue than her life; will the law say that
I am
not presumed to indulge this presumption that she would take her life
because
she regards her virtue more than her life; will the law say that? I
think that
is the thing for the jury. The question is, am I presumed she would
stake her
virtue or take her life, if that is the only theory, if it is
reasonable to be
presumed she will take her life if a virtuous woman. That is for the
jury to
determine; if they determine that is a reasonable thing for her to do,
then I
have committed murder, if it is unreasonable, I have not; if the law
says to
the man who has attacked a virtuous woman,‑‑I am not saying that is the
condition here, but I am saying it on a supposed case,
but in passing on the evidence and giving a reason,
and I
do this once for all. If the law charges me under such condition, I
attack a
real virtuous woman I am presumed to intend the natural consequences of
my
acts; now what are the natural consequences? I might place a virtuous
woman
where she would have to say, I stand every chance of losing my virtue
or losing
my life; must I presume that woman‑‑am I allowed to presume that woman
regards
her life dearer than her virtue; on the other hand, must I anticipate
that she
regards her virtue dearer than her life? If that is the fact, that is a
fact
for the jury to determine; then I must anticipate this woman is liable
to kill
herself, and if that is the natural consequence of the act that I have
done,
then it is for the jury to determine, and if it considered it a natural
consequence, then this evidence is admissible."
Appellant's
objection to the statement made by the court in the presence of the
jury was
overruled, as was his motion to set aside the submission and discharge
the jury
on account of the making of such statement. Appellant's counsel then
asked
leave to discuss with the court the law on the questions involved,
which the
court declined to hear, and then made the following further statement:
"I
would not want the attorneys to think the court had not carefully
considered,
and I would not want them to say I have not; I don't say I am right but
that is
my opinion; I would not shoot off that way unless I had given it
thought, and I
don't suppose the counsel means to intimate, but we will take that up,
gentlemen, and discuss it later."
The
question to be
decided by the trial court was whether it should sustain or overrule
the
objections made by defendant's counsel. The ruling of the court could
easily
have been announced in two words; yet the court used 700 words. Stating
aloud
to the jury the long series of mental processes by which the court
reached its
conclusion could serve no useful purpose. Instructions to juries at the
proper
time and in an orderly manner are provided for by law, and it is highly
improper for a court to make a long discourse in the presence of the
jury on
the law or the theory of the case, which can be, and doubtless was in
this
case, accepted by the jury as an instruction. If the judge desired to
expound
to counsel his view of the law involved, he should have done it out of
the
presence of the jury. It would have been proper for him, in the absence
of the
jury, to have listened to argument by counsel on the question involved.
In its
remarks, the court assumed certain situations of fact to exist which
were not
alleged in the indictment nor shown to exist by evidence in the case;
it made
uncertain and incomplete statements regarding certain theories and
rules of law
which were of doubtful application to the case at bar, and I believe
that such
remarks were prejudicial to appellant's rights.
Scope of
cross‑examination
of interested witness. The attorney who prepared the deceased's
written
dying
declaration testified that he had gone with deceased's mother to
appellant's
house hunting for her on the night the party returned from Hammond, and
that he
had gone to deceased's home practically every day from March 17 to 28,
during
which time he wrote, corrected, and rewrote the dying declaration. On
cross‑examination,
he testified that he had been employed by deceased's father to collect
money
from appellant, or to do whatever was necessary; but the state's
objections
were sustained to questions asking him whether he had prepared a
complaint in
the case and whether he had gone to see appellant at his office about a
settlement of the case. A defendant has the right to fully
cross‑examine the
witnesses against him and to test thereby their credibility or show
their
interest, bias, or prejudice against him. Bedgood v. State (1889) 115
Ind. 275,
281, 17 N. E. 621; Hyland v. Milner (1885) 99 Ind. 308, 311; Kinsman v.
State
(1881) 77 Ind. 132, 137. I believe it would have been proper to have
permitted
the questions asked to be answered; but by the evidence adduced in
response to
questions which the court did not permit to be answered, the nature of
the
attorney's employment and his interest appeared, and we cannot say that
the
trial court abused its discretion in limiting as it did the scope of
the cross‑examination.
Foust v. State (1928) 200 Ind. 76, 161 N. E. 371.
Inapplicable
instructions. Instruction No. 45, given by the court of its own
motion,
read as
follows: "The law declares that one who inflicts an injury on another
and
thereby accelerates his death shall be held criminally responsible
therefor,
although the death would not have resulted from the injury, but for the
diseased and wounded condition of the person so injured, already
existing at
the time of such act of acceleration."
This
instruction is
selected as one of several which are not applicable to the evidence.
The giving
of such inapplicable instructions could only tend to mislead and
confuse the
jury. I cannot agree that the court was justified in giving instruction
45 upon
the theory that under counts 2 and 4 appellant is charged with willful
murder
by poison, and that the act of acceleration referred to in the
instruction was the
poison.
I am in
accord with
all the statements made in the separate opinion of TREANOR, J., which
do not
conflict with the views expressed herein.
TREANOR, J.
(dissenting in part, concurring in part, dissenting from the
conclusion).
I agree
with the per
curiam opinion that there was no error in overruling the motion to quash the first count, and
reach this conclusion by construing the first part of the first count
down to
and including the allegations respecting the taking of poison as
charging a
killing in an attempted rape. The first count contains three more or
less
distinct sets of allegations, each setting out a species of wrongful
conduct.
One set centers around the actual rape, or attempted rape; the second
includes
the facts of the procuring and taking of the poison; and the third
relates to
the withholding of aid after the poison had been taken. But since the
first
count closes with the allegation that Madge Oberholtzer died "from the
effects of her wounds inflicted as aforesaid and said poison taken as
aforesaid" it may be construed to charge that the defendants caused the
death of Madge Oberholtzer by reason of wounds inflicted during the
perpetration of the attempted rape and by reason of poison taken as a
result of
the attempted rape. I also agree with the per curiam opinion in
construing
"distracted with the pain and shame so inflicted upon her" to be
equivalent to saying that the victim of the assault was in a state of
mental
irresponsibility when she procured and took the poison. As I shall
later point
out, I do not think that the trial was conducted on the theory that
these words
imported the fact of mental irresponsibility; but as against a motion
to quash
they should be so construed. See 18 C. J. 1289; Webster's New
International
Dictionary under "distraction." See, also, sections 3424 and 900, cl.
3, Burns' Ann. Ind. St. 1926, and in connection therewith, Goodwin v.
State, 96
Ind. 550, especially on Petition for Rehearing; Sage v. State, 91 Ind.
141,
145. But this construction of count 1, which enables us to say that
there was
no error in overruling the motion to quash, eliminates from the charge
of
murder in an attempt to rape all of those allegations respecting the
withholding of aid, and forces the conclusions that the trial court
erred in
overruling the motion to strike out that portion of count 1 which
contained
these allegations of failure to furnish aid during the return trip to,
and
after arrival in, Indianapolis. For despite the state's insistence that
"the whole trip from Indianapolis to Hammond and return forms a part of
the res gestae relating to attempted rape," we cannot ignore the plain
fact that there was no attempt to commit a rape after the parties
registered at
the hotel at Hammond. The allegations respecting the taking of poison
are
properly included in the first count charging murder in an attempted
rape on
the assumption that the count charges that the actual attempt to rape
caused
the taking of the poison; but since the alleged acts of failure to
provide aid
were not a part of the attempted rape, or causally connected therewith,
their
inclusion in the first count cannot be justified by calling them "a
part
of the res gestae of attempted rape."
We
understand the
per curiam opinion to hold that these allegations should have been
stricken out
as surplusage, but that the refusal to strike out was harmless error.
The case
of Torphy v. State, 187 Ind. 73, 118 N. E. 355, is authority for the
rule that
a motion to strike out is the correct procedure to remove improper
matter from
an indictment when the presence of the improper matter does not
constitute one
of the statutory grounds for a motion to quash; and in that case this
court
held that the trial court committed reversible error in overruling a
motion to
strike out of the indictment certain prejudicial allegations. We agree
with the
analysis of Torphy v. State, supra, contained in the per curiam
opinion, but do
not accept the reasoning by which the opinion reaches the conclusion
that the
force and authority of that case is limited to the error in overruling
a motion
to strike out allegations from an indictment only when these
allegations serve
the purpose of "conveying facts to the jury that could not be properly
presented in evidence from the witness stand." Per curiam opinion,
supra,
179 N. E. page 638.
That
particular
danger did not exist in the instant case since, as the majority opinion
points
out, the objectionable allegations in the first count were all included
in the
fourth count, and any evidence which might have been admitted to
support the
allegations in the first count was clearly admissible under the fourth
count.
In fact most, if not all, of the facts alleged in the first count
relating to
failure to furnish aid were competent evidence under the res gestae
rule of
evidence. But the defendant's interests were seriously prejudiced
because the
retention of the allegations in question must have confused and misled
members
of the jury as to the scope of count 1, and as to the proper
application of
that part of the evidence which supported the allegations. Indeed, when
we
consider instructions 46 to 50, it seems inevitable that the jury
understood
that the objectionable allegations in themselves constituted and
charged a
separate and distinct offense of felonious homicide under count 1. The
substance of these instructions, as applied to the evidence in the
case, is
fully and clearly indicated by instruction No. 48, which is as follows:
"If you are convinced by the evidence beyond a reasonable doubt that
these
defendants or any of them voluntarily took Madge Oberholtzer into their
custody
while she was in a weak, sick or helpless condition from any cause
whatsoever,
and continued to exercise control and custody over her, and that while
they
were so exercising such control and custody over her, she became
violently ill
from any cause whatsoever, then
I instruct you that it was their duty under the law to care for her
without
wicked negligence, to supply her with care and medical attention if
necessary
within their means and to render her whatever assistance the evidence
in this
case shows beyond a reasonable doubt to have been necessary to the
preservation
or the prolongation of her life and if you believe from all the
evidence in
this case that they did so take her into custody, and that she did
become
violently ill for any reason whatsoever, and if you further find that
they
failed and refused to render her such medical attention and assistance
within
their means, and if you further find that she afterward died as a
result of
such failure to render her such medical assistance, or her life was
shortened
by the failure on the part of these defendants or any of them so to
act, then I
instruct you that they are guilty of manslaughter if you find said
omission to
act was mere negligence, but if you find that such omission or failure
to act
was done willfully, with a reckless disregard of the consequences, then
I
instruct you that they would be guilty of murder."
The
state insists
that instructions 46, 47, and 48 were "clearly confined to count 4,
which
was the only one on the theory of willful murder by reason of failure
of
appellant to perform the legal duty of affording care and medical
relief after
the poison was taken"; although "the State agrees with appellant that
Instruction No. 47 given by the Court is not applicable to Count 1
under which
alone the appellant was found guilty." Appellee's brief, p. 153. If
these
instructions were "clearly confined" to count 4, it must be presumed
that the jury so understood, and consequently any intrinsic defects in
the
instructions were rendered harmless by the failure of the jury to
convict on
count 4. But it appears to the writer that these instructions clearly
were not
confined to count 4. In none of the instructions 46 to 50, inclusive,
is there
any statement expressly limiting the instruction to count 4; and the
phraseology and content suggest equally the objectionable allegations
in count
1 and the allegations in count 4; and when we consider instructions 49
to 50 it
is clear that the trial court intended that the jury should apply these
instructions to count 1. To get the full force of these two
instructions, it is
necessary to consider that the evidence did not clearly show to what
extent
Klinck, one of the defendants, participated in the criminal
transaction, and
especially that part of the affair which involved the trip to Hammond
and the
criminal assault. In instruction 49, the court correctly charged the
jury
respecting Klinck's responsibility for acts of his codefendants
committed
outside his presence, and in instruction 50 makes the following
statement:
"*** Unless you are convinced beyond a reasonable doubt that said
Klinck
was a party to, or participated in a plan of said other two defendants
or
either of them to entrap and to make a criminal assault upon the person
of
Madge Oberholtzer, as alleged in the indictment, with knowledge of the
purpose
of said plan, he could not be liable for the acts of said other two
defendants
or either of them, outside his presence, and during said trip to
Hammond, if
you find such trip was made; *** and although he might not have been a
party to
such a plan, as alleged, and hence not liable for the acts of said
other
defendants, while on said trip, if such trip was made, yet if you are
convinced
by the evidence beyond a reasonable doubt that subsequently said Madge
Oberholtzer was returned to the garage of the defendant Stephenson, in
a
weakened and helpless condition, in which condition she was placed into
the
custody and control of said Klinck in said garage which he assumed and
undertook to perform, then I instruct you that at that time there was a
legal
duty resting upon him to use all reasonable means within his power to
care for
her, and if he failed to do so, either by an act of commission or an
act of
omission, by reason of which her life was shortened he would be guilty
of
felonious homicide under the first or fourth count of the indictment."
(Our italics.)
In the
foregoing,
the trial court told the jury that Klinck might be convicted of
felonious
homicide under the first count, even though the jury should find that
he was
not responsible for any of the acts of his codefendants prior to the
trip back
to Indianapolis, provided only the jury should find that he was
criminally responsible
for withholding aid, and that such withholding of aid shortened the
life of
Madge Oberholtzer; and we must necessarily conclude that the trial
court and
the jury understood that the allegations in the first count covering
the
failure of defendants to supply aid constituted either a charge of
felonious
homicide as a substantive offense, separate from and independent of the
charge
of murder in the attempted rape, or an essential element in the offense
of
murder in the attempted rape, to the same purpose and effect as the
wounding
and the taking of the poison. If the former was the jury's
understanding, then
the appellant Stephenson was in fact, no matter what this court's
theory of the
scope and construction of count 1 may be, tried and convicted on a
count
charging two distinct and separate substantive offenses, on one of
which he
could be convicted of murder without any allegation or proof of purpose
to
kill, and on the other of which the degree of homicide might range from
involuntary manslaughter to first degree murder. If the latter was the
jury's
understanding, the appellant was convicted under a count which
permitted the
jury to find him guilty of
murder in the attempted perpetration of a rape, in case the jury should
find
that he was guilty of an attempted rape and also found that he
accelerated or
caused the death of his victim by negligently failing or refusing to
supply
aid; and he could be convicted thus, without the necessity of the
jury's
finding that the appellant was legally responsible for the taking of
the
poison, or to what extent, if any, the wounds contributed to the death
of the
victim. The injury to the appellant is obvious. The evidence showed
only three
possible causes of death, the wound on the breast, the poison, and the
withholding
of aid. The evidence connecting the wound with the death is, at the
best,
strikingly weak and unsatisfactory. The jury reasonably might have
found that
it was not a factor. Both the per curiam and the individual opinions
agree
that, in order for the appellant to be legally responsible for the
taking of
the poison by his victim, it was necessary that the jury find that the
natural
and probable consequence of appellant's mistreatment of Madge
Oberholtzer was
to render her mentally irresponsible, and also find that while thus
mentally
irresponsible, and as a result thereof, she procured and swallowed the
poison.
Under the foregoing test, the jury reasonably could have concluded that
Stephenson was not legally responsible for Madge Oberholtzer's act of
taking
the poison. Further, both the per curiam and the individual opinions
agree that
the alleged acts of Stephenson in refusing or withholding aid cannot be
considered a part of the offense of murder in attempted rape. In view
of the
foregoing, it is clear that the defendant was entitled to have the jury
understand that he could not be convicted on the charge of murder in an
attempted rape unless the jury should find (1) that the wound, with the
resulting infection, caused death; or (2) that the defendant was
legally
responsible for the taking of the poison, and that death was caused by
the
poison; or (3) that the defendant was legally responsible for the
taking of the
poison, and that the death resulted from the concurring effects of the
wound
and the poison. The defendant was entitled also to have the jury
understand
that the allegations respecting withholding of aid, in so far as they
charged a
public offense, charged the offense of homicide in the commission of an
unlawful act, and that the defendant might be convicted on this charge
only
under count 4, and could be convicted of murder on this charge only in
case the
jury should find that the unlawful act (i. e., failing or refusing to
afford
aid) was committed for the purpose of causing the death of Madge
Oberholtzer.
Further, it was of vital importance to the defendant's legitimate
defense that
the jury clearly understand that the unlawful act of refusing aid could
not be
substituted as a cause of death, for either the wounding or taking of
poison, in
order to make out the offense of murder in attempted rape, as charged
in the
first count. I do not mean to say that evidence of the failure to
supply aid
could not be introduced to show the efficacy of either the poison or
the
infection from the wound in causing death. But I do mean to say that if
the
jury concluded that the infection from the wound on the breast was not
an
appreciable factor in causing death, and if the jury also concluded
that the
defendant was not legally responsible for the taking of the poison,
both of
which conclusions would not have been unreasonable, then the jury could
not
have found the defendant guilty of murder in an attempted rape, even
though we
assume that the jury was convinced beyond a reasonable doubt that the
defendant
was under a legal duty to furnish care and medical aid to Madge
Oberholtzer,
and that by reason of his failure or refusal to do so accelerated or
caused her
death. Under the last assumption, the defendant was undoubtedly guilty
of
felonious homicide under count 4, but the degree of homicide had to
depend upon
the mental state of the defendant in fact, and could not be supplied
by, or
presumed from, the fact of the attempted rape.
I am
convinced that
the retention in the first count of the objectionable allegations and
the
effect given them, as indicated by instructions 46 to 50, misled the
jury as to
the scope of the first count, as construed and limited by both the per
curiam
and individual opinions, and consequently substantially prejudiced the
interests
of the defendant.
I think
the trial
court committed further reversible error in the giving of instruction
No. 41.
This instruction is as follows: "The law presumes that one intends the
natural and probable consequences of his acts, whether he actually
intended or
anticipated them or not. Of course such presumption can not be indulged
in and
carried to the extent of making one guilty of homicide on account of
voluntary
suicide of a sane person where such suicide may have been induced or
caused
from remorse, grief, shame or humiliation growing out of some past
action of
himself or herself and another to which he or she has assented
voluntarily. But
if in such case, there be no voluntary assent on the part of such
person taking
his or her life, to such past action which caused such remorse, grief,
shame
and humiliation but that he or she was compelled to participate in such
action
causing such remorse, grief, shame or humiliation through force,
threats,
coercion and restraint of another. Then it is for the jury to determine
whether
or not the suicide in such a case, after considering all the evidence
relating
thereto, is the natural and probable consequence of the acts of such
person. If
it is the natural and probable consequence of such act or acts, it is
felonious
homicide, otherwise it is not felonious homicide."
Instruction 41 undoubtedly referred to, and was
understood by the jury
to refer
to, that particular part of count 1 which alleged the facts respecting
the
taking of poison by Madge Oberholtzer, since that part alone involves
the
question of suicide.
This
instruction
must be considered in the light of the holding of both the per curiam
and
individual opinions that the defendant was not legally responsible for
Madge
Oberholtzer's act of procuring and swallowing the poison unless the
poison was
procured and swallowed by her while in a state of mental
irresponsibility
induced by the wrongful acts of the defendant, and the natural and
probable
result thereof. See per curiam, supra, 179 N. E. 649. And I believe
that
instruction 41 violates the foregoing by omitting the element of mental
irresponsibility and by making the responsibility of the defendant for
the act
of self‑destruction depend on the simple test of whether, according to
the
standard of the jury, her act was the natural and probable consequence
of the
misconduct of the defendant. I appreciate that the per curiam opinion,
while
recognizing the necessity of the element of mental irresponsibility,
construes
the instruction to mean that if the jury found "that the suicide was
the
natural and probable result of the acts of appellant they necessarily
had to
find that the acts of appellant resulted first in rendering the
deceased
distracted and mentally irresponsible; for the willful and deliberate
destruction of one's own life is not the natural and probable action of
one who
is in sound mind." But as I construe instruction 41, it told the jury
that
it could find "that the suicide in such a case" was the "natural
and probable consequence of the acts of such person," even if the one
committing suicide was of sound mind. I agree with the per curiam
statement
that a deliberate and willful taking of one's own life is not a natural
and
probable act of one of sound mind; and consequently it follows that a
wrongdoer
is not required by law to anticipate such an act, by one of sound mind,
as a
legal consequence of the acts of the wrongdoer. But we cannot assume
that one
of sound mind will not commit suicide, and then, by a process of
reasoning
backward, conclude that one who commits suicide is not of sound mind.
The fatal
defect in instruction 41, as I interpret it, is that the jury could
find the
appellant legally responsible for the deceased's act of procuring and
taking
poison without definitely determining (1) whether the victim was in
fact
rendered mentally irresponsible by the acts of the appellant; (2)
whether this
condition was the natural and probable consequence of appellant's acts;
and (3)
whether the act of self‑destruction was the natural and probable
consequence of
the mental derangement. The last‑mentioned element has a special
significance
in this case, since it would seem necessary that there be some
reasonable
relation between the act of the mentally irresponsible person and the
particular type of mental irresponsibility.
In
instruction 6,
tendered by appellant, the court defines suicide thus:
"Suicide is taking one's own life while
possessed of sound mind." (Our italics.)
Instruction
41 first
carefully stated that a person cannot be held to anticipate, as a
consequence
of his acts, a "voluntary suicide of a sane person where such suicide
may
have been induced or caused from remorse, grief, shame, or humiliation
growing
out of some past action of himself or herself and another to which he
or she
has assented voluntarily." (Our italics.) The court then states the
conditions under which it is "for the jury to determine whether or not
the
suicide in such a case, after considering all the circumstances
relating
thereto, is the natural and probable consequence of the acts of such
other
person." It is clear from this statement of conditions that the
criminal
responsibility is made to depend upon the question whether the victim
of self‑
destruction was a willing or unwilling participant in the "past action
causing such remorse, grief," etc. There is no suggestion that the
mental
irresponsibility of the victim is a factor "in such a case," and we
think it impossible to construe the instruction to require the jury to
find
that the defendant should have anticipated, as the natural and probable
result
of his conduct, that Madge Oberholtzer would be rendered mentally
irresponsible; and to further find that she was rendered mentally
irresponsible, and as a consequence of her mental irresponsibility
committed
suicide. The fact of forced participation would, of course, be
important
evidence in gauging the mental and emotional reaction of the victim for
the
purpose of determining whether she was in fact rendered mentally
irresponsible;
but such fact should not be made the basis of a rule of law which
creates a
class of cases in which criminal responsibility is determined by the
varying
and undefined standards of juries as to when a "suicide of a sane
person" is the natural and probable consequence of the acts of another.
Instruction
42 sets
out in detail the facts to be considered by the jury in determining
whether the
deceased was a "willing or unwilling participant on the trip in
question,
***" and obviously the instruction was given to supplement instruction
41
and to help the jury to determine the specific question of whether
there was
"voluntary assent *** to such past action which caused such remorse,
grief," etc. When we consider instructions 41 and 42 together, we are
the
more firmly convinced that the plain and natural meaning is that the
jury
should first determine whether the deceased was a voluntary participant
in the
acts which caused the shame and humiliation; and if it was found that
she was not a voluntary
participant, then it was for the jury simply to determine, on the basis
of its
own standard, "whether or not the suicide in such a case, after
considering all the evidence relating thereto, is the natural and
probable
consequence of the acts of such other person."
That
the trial court
did not consider mental irresponsibility a necessary factor in
determining the
responsibility of the defendant for the procuring and taking of the
poison is
indicated by the remarks of the judge, before the jury, when overruling
an
objection to the introduction of an alleged dying declaration. These
remarks
are set out in full in the opinion of MARTIN, J., in connection with
his
discussion of their prejudicial effect upon the jury, and I shall not
repeat
them here. Since I agree with MARTIN, J., that their prejudicial
character was
in itself sufficient to constitute reversible error, I shall call
attention
merely to their significance in connection with instruction 41. Nowhere
in the
trial court's comments is there any suggestion of the necessity of the
element
of mental irresponsibility in order to transform the "suicide" into
homicide. The tenor of the remarks is indicated by the following: "The
question is, must these men anticipate this suicide (our italics) as a
reasonable result of their acts?" or by "*** then I must anticipate
this woman is liable to kill herself, and if that is the natural
consequence of
the act that I have done, then it is for the jury to determine, and if
it
considered it a natural consequence, then this evidence is admissible."
The
trial court's
refusal to give instruction 116 tendered by appellant is understandable
only on
the assumption that soundness or unsoundness of mind was not the
determining
factor in fixing the responsibility of the appellant for the act of
self‑destruction
of Madge Oberholtzer. The tendered instruction is as follows: "The law
presumes that one intends the natural consequences of his acts, I
instruct you,
however, that such presumption cannot be indulged in and carried to the
extent
of making an accused guilty of homicide, an account of the voluntary
suicide of
a sane person, even where such suicide may have been induced or caused
from
remorse, grief, shame or humiliation growing out of some past action of
the
accused on or against the deceased."
We
think the above
instruction was clearly proper and should have been given under the
theory,
which is accepted by both the per curiam and individual opinions, that
the
appellant was not legally responsible for the deceased's act of
procuring and
taking poison if at the time of such act she was of sound mind.
We, of
course,
recognize that if one is not free to refrain even from an act of
self‑destruction
by reason of present physical or mental coercion by another, or by
reason of a
state of mental irresponsibility induced by present or past acts of
another,
that an act of self‑destruction may be, in fact and in law, the act of
the one
exercising the physical or mental coercion or causing the state of
mental
irresponsibility. But it is equally true that one cannot be criminally
responsible for the voluntary self‑determined act of another, who at
the time
of doing the act is in a position to act or refuse to act. The law does
not
give the victim of criminal misconduct the power to transform, by his
own
deliberate act, this criminal misconduct into a more serious criminal
offense.
So in this case, no matter how reprehensible the conduct of the
defendant was
prior to the moment the deceased took the poison, he was not a
murderer, and
the unfortunate victim of his misconduct could not by deliberately
choosing to
destroy her own life make him a murderer.
Evidence of Mental
Irresponsibility.
I think
there was
some evidence to support a finding that Madge Oberholtzer was mentally
irresponsible when she procured and swallowed the poison. There were
facts and
statements which, standing alone, would indicate a clear‑minded and
reasoned
act of self‑destruction, attended by a complete comprehension of the
moral and
physical consequences of her act and a sufficient mental power and
control to
make a choice. But we cannot ignore the terrific array of facts
relating to the
bestial mistreatment of the deceased; nor can we safely estimate the
precise
effect on the mind of the victim of her terrible experience. The
irresistible
impulse test of insanity, as recognized in Indiana, increases, I think,
the
danger of saying there was no evidence to support a finding of mental
irresponsibility amounting to insanity; and if that question had been
presented
to the jury under proper instructions I could agree with the per curiam
opinion
in holding that such finding was supported by the evidence.
The Wound on the Breast as a
Cause of Death.
There
is sufficient
evidence to establish that the appellant caused a laceration of the
deceased's
breast while engaged in the attempt to commit the rape; and the
evidence also
establishes that this wound became infected. The post mortem
examination
discloses an abscess in one lung, and at least one expert testified
that in his
opinion "the infection found in the lungs came from the infected area,
recently healed, in the skin on the chest." Dr. Warvel, expert witness
for
the state, testified as follows: "I would not say for certain that
because
there was an abrasion on one of the breasts and an abscess in one of
the lungs
that it would necessarily follow that one communicated germs to the
other
unless I could prove there was no other avenue of infection." The
evidence
showed conclusively that Madge
Oberholtzer had suffered an attack of flu a short time before her
death, and
the evidence of experts established that one of the common
after‑effects of flu
is an abscessed condition of the lungs. In view of all of the evidence
on this
point, I feel that the conclusion that the abscessed condition of the
lung was
caused by the infected abrasion on the skin must be as nearly a purely
speculative inference as any conclusion can be, and yet be entitled to
the name
of expert opinion. But granting that it was admissible, and it
evidently was, I
do not feel free to say there was no evidence to show that the abscess
in the
lung was the result of the infected abrasion on the breast. But there
still
remains the problem of deciding whether the infection in the lung can
be held
to have been a proximate cause of the death, or whether, at the most,
it merely
created a condition which might or might not have added to the efficacy
of the
poison. I agree with the conclusion of MARTIN, J., that "from the
viewpoint of a court in determining the guilt or innocence of one
charged with
murder by infliction of a bite (which was not in itself a dangerous
wound),
such bite and the infection resulting therefrom could not be
'superimposed'
upon the dangerous condition arising from poison which was afterwards
taken, so
as to make the bite and not the poison the proximate cause of the
death."
See opinion of Martin, J., 179 N. E. page 653, and preceding discussion.
Jurisdiction of the Hamilton
Circuit Court.
I
concur with the
per curiam opinion in holding that the Hamilton circuit court acquired
jurisdiction of the subject‑matter of this cause despite the fact that,
upon
change of venue from the criminal court of Marion county to the
Hamilton
circuit court, the copy of the orders and proceedings had in the cause
while
pending in the criminal court of Marion county was not authenticated by
the
signature of the clerk of that court.
Admissibility of Dying
Declarations.
As
respects the
admissibility of the two dying declarations, one written and the other
oral, I
think both the per curiam opinion and the opinion of MARTIN, J.,
conclusively
show that the written declaration was properly admitted. There is some
room for
doubt about the admissibility of the oral declaration, the content of
which was
testified to by Dr. Kingsbury. At the time the statements which
constitute this
declaration were made to Dr. Kingsbury, the deceased also made some
remarks
which indicated she was not anticipating immediate death; and death did
not
ensue for some time after the declaration was made. But inasmuch as the
evidence
shows that poison had been taken by the declarant for the purpose of
causing
her death, and since various remarks by her indicated that she firmly
believed
that she would eventually die as a result of her condition, and since
she did
in fact die as a result of such condition, I think that the requirement
that
such declarations be made with a definite and firm conviction of
impending
death was satisfied. It is true that at the time the declaration was
offered in
evidence the proper foundation had not been laid for its introduction;
but
since all the proof necessary for such foundation was later offered and
admitted, I feel that the technical error in admitting the dying
declaration
without this proof first having been offered was harmless, and
especially so,
in view of the fact that the substance of the oral declaration was
included in
the written declaration which was admitted after the proper foundation
had been
laid.
The reasons which I
have given in support of my conclusion that the trial court committed
prejudicial error in overruling the motion to strike out and in giving
instruction 41 are not intended to imply that the trial judge was
either
confused or inconsistent in his rulings. His construction of count 1
and his
rulings and instructions based thereon were consistent. Yet it is
evident that
the trial court's construction of count 1, as understood by the writer,
would,
if accepted by this court, make count 1 bad as against a motion to
quash on the
ground of uncertainty. But the vital consideration is that the trial
court's
theory of the first count, and not this court's theory, was actually
applied
during the trial, and determined the character of his rulings and
instructions;
and if the writer is correct in his interpretation of the trial court's
theory,
and has properly estimated the effect of such theory on the conduct of
the
trial, it is clear that the appellant was deprived of substantial
rights to
which he was entitled under both the per curiam and individual opinions.
Since I believe the defendant's legitimate
interests were prejudiced by the trial court's theory of count 1, and
the
rulings and instructions based thereon, I conclude that the judgment
should be
reversed, and a new trial granted.
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