Stephenson v. State

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, Indiana, which indictment, omitting the formal parts, reads as follows:

"The Grand Jurors of 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 *Page 146 murder Madge Oberholtzer in the manner and form and by the means following, to wit: 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 and 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 known 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 *Page 147 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, to wit: 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 on 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 *Page 148 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 the said defendants and each of them were then and there fully able to procure such antidote and help for 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 14th, 1925, in said county die from the effects 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. *Page 149

"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 Jury 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 do charge 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. *Page 150

"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 to wit: bichloride 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 *Page 151 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 to wit: 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." Gentry and Klinck were acquitted.

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 *Page 152 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 instruction, 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 16th, 1925.

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 assignment of errors, presents the question of whether the Hamilton Circuit Court acquired jurisdiction over the person of the 1. defendant, over the subject-matter of the action, to try said cause and pronounce judgment thereon. 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 proceeding in the Marion Circuit Court filed with the clerk of the Hamilton Circuit Court, and cites in support thereof sects. 2239, 2240, 11846, Burns 1926, and Fawcett v. State (1880), 71 Ind. 590.

Section 2239, supra, provides that: "When affidavits *Page 153 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. . . ." Sec. 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 the grand jury impaneled in such court, . . ." The appellant, as stated above, does not contend that the procedure set out in the latter part of § 2239, supra, was not followed. It will be observed that neither § 2239 nor § 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." Bouvier, 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 Nebraska, inState v. Board, etc., 7 Nev. 83, 95, said: "The word `transcript' suggests the idea of an original writing. The word, not only in its popular but legal sense, means a copy of something already *Page 154 reduced to writing." Then was there, in fact, a transcript made by the clerk of Marion County, sealed up with the original paper, 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 § 11846, supra, is applicable here and calls our attention toFawcett v. State, supra, 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. Sec. 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 case, 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 can not agree. We are of the opinion that § 11846, 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, insofar as the case of Fawcett v. State, supra, 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 they used appropriate language to that effect. Section 1946, Burns 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 § 716, Burns 1926, which has to do with transcripts on appeal *Page 155 to this court, expressly provides that the transcript shall becertified 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 can not 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 has 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 2. 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 question attempted to be presented by the first and second causes for a new trial could therefore only have been presented by pleading them in abatement and by pleading them 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 3. relates the happenings subsequent to the taking of poison by Miss Oberholtzer and which charged that appellant failed to provide *Page 156 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.

This count of the indictment charges the whole criminal program as one transaction. If we assume the facts to be that the appellant is criminally chargeable with the taking of the 4. poison by Miss Oberholtzer, and that the wound inflicted in the assault and battery with intent to rape, plus the effects of the poison, plus the unlawful imprisonment and failure to render aid and assistance, set out in the latter part of the count, caused the death, and that she would not have died in the absence of the wound, or the poison, or the unlawful imprisonment, or failure to give aid, all of which were unlawful and criminal, then we have a state of facts which makes the latter part of the first count a necessary allegation, and one without which the jury could not have found the appellant guilty under the first count or any of the other counts in the indictment, notwithstanding they might believe he was guilty of acts which would justify a conviction of murder under proper allegations.

The first count charges that death resulted from the effects of the wound and the poison. It is obvious that death would not have resulted from the imprisonment and failure to give aid alleged, since such imprisonment and failure to give aid was only injurious to the extent that it contributed to and aggravated the results of the wound and the poison; and it is equally obvious that death might not have resulted in the absence of the imprisonment and failure to give aid, and the jury might readily have believed, notwithstanding the criminal *Page 157 responsibility of the appellant for the wound and the poison, that death would not have ensued except for the imprisonment and failure to give aid.

We are not concerned with the question of whether the wound or the poison was the proximate cause of death, since the first count charges that the appellant was responsible for all of the wrongs. If each contributed, the extent to which they influenced her death is immaterial. If one person had been responsible for the wound, and another had been responsible for the poison, and still another for the imprisonment and failure to give aid, the first two having no cause to anticipate the latter, it would be highly important to determine which was the proximate cause of the death, but since one person was responsible for all, the influence of either in bringing about the result is immaterial if the result was produced by the combined influence of all.

The instructions of the court, insofar as they effect the first count of the indictment, are consistent with this theory. Under this theory, the defendant Klinck would be guilty of homicide under the first count of the indictment if he aided and abetted the appellant by assuming and undertaking the imprisonment in the Stephenson garage after the return from Hammond. He would be liable as an accomplice and not as an accessory. For, where one contributes to a particular result by his unlawful act, he is held responsible as though he alone had produced it.

Appellant's eighth and ninth assignments of error question the ruling of the court on his motion to quash the first count of the indictment. Appellant's motion to quash states the 5-8. 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 *Page 158 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 infliction 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 in the cases 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 can not agree with appellant in this construction of the first count of the indictment, for it is alleged in said count, in effect, that *Page 159 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, 174 English Rep. 509; 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; 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 9-14. 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, § 2412, Burns 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 *Page 160 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 A.L.R. 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 (2nd Ed.) Sec. 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 15. the murder of the same person, but in a different manner, the state *Page 161 can not be compelled to elect between such counts. 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, §§ 16. 2358-2359, Burns 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. 211, 104 N.E. 511, held that under Art. 1 § 13 Const., § 65, Burns 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 any way 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 *Page 162 K. Kingsbury. After stating his name, residence, age, etc., he stated that he was called by telephone about 11:30 A.M. 17. 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 Schultz, 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 *Page 163 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. Schultz, 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 (1925), 196 Ind. 84, 88, 147 N.E. 153, 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 facts 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 (1924), 194 Ind. 688, 141 N.E. 639, the court said: "The admissibility of these statements was first for the trial court to determine, and that *Page 164 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 can not 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 16th 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 18. 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 *Page 165 competent in case of suicide. The remarks of the court objected to, was addressed to the last part of the objection and was a statement of the law as the court understood it, when dying declarations were admissable, 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 admissable. 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 can not 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 by his motion for a new trial challenges 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 challenge the sufficiency of the evidence to support the verdict and this question necessitates a statement of the facts proven at 19. 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 Un