Anderson v. State

• Decision Date: 29 June 1933
• Docket Number: No. 26012.,26012.
• Citation: 205 Ind. 607,186 N.E. 316
• Parties: ANDERSON v. STATE.
• Court: Indiana Supreme Court

205 Ind. 607

186 N.E. 316

ANDERSON

v.STATE.

No. 26012.

Supreme Court of Indiana.

June 29, 1933.

Appeal from Franklin Circuit Court; Roscoe O'Byrne, Judge.

James Anderson was convicted of first degree murder, and he appeals.

Affirmed.

The instruction in the case of Dorak v. State, 183 Ind. 622, 109 N. E. 771, referred to in the opinion as identical with instruction complained of herein, was as follows: “While it is necessary for the state to establish the killing of the deceased by the accused beyond a reasonable doubt, and to show the facts of the death of the deceased, and to show that the person alleged to have been killed is actually dead, yet where the defendant attempts to justify the killing as having been done in self–defense, the burden is on the defendant to show he was justified in the act, and in the use of a deadly weapon, or to offer evidence sufficient to raise in your minds a reasonable doubt as to his justification in such acts.”

C. W. Napier, of Hazard, Ky., Wm. L. Chambers, of Brookville, and Tremaine & Turner, of Greensburg, for appellant.

James M. Ogden, Atty. Gen., and James T. Dowling, Deputy Atty. Gen., for the State.

HUGHES, Judge.

The appellant was indicted by the grand jury of Dearborn county for the murder in the first degree of Herman Lange. On a change of venue the cause was sent to the Franklin circuit court, where the appellant was tried by a jury, convicted, and his punishment fixed at death.

The appellant presents two specifications in his assignment of error: (1) That the court erred in overruling the motion of appellant to quash the affidavit; (2) that the court erred in overruling appellant's motion for a new trial.

Several reasons are assigned in the motion for a new trial. Two of the more substantial ones are: (1) That the court erred in permitting the state to read to the jury an alleged dying statement of the decedent, Herman Lange; and (2) the court erred in permitting the state to read to the jury an alleged confession of the defendant.

The alleged dying statement is as follows:

“Cincinnati, Ohio, December 31, 1929. I, Herman Lange, being now fully convinced that I am going to die from injury I sustained on the morning of December 30, 1929, when I was shot and with the full realization of impending death certain, from my present injuries, do hereby voluntarily make the following statement as to the facts as to how I was shot. The man who did the shooting was James Anderson. He told me that was his name. He wore high top, laced shoes, blue corduroy pants, black overcoat and black hat. I went to Brookville and met the Sheriff of Franklin County and on the road back I saw Anderson and I went back and asked him if he wanted to ride. I stopped and I got out of the car and the wind must have blown my coat back and when he saw my badge, he shot me.

“[Signed] Herman Lange

“Witnesses, Ora M. Slater,

“Howard L. Shearer.”

At the time Herman Lange received his fatal injury, he was sheriff of Dearborn county, and was in pursuit of the appellant, who had shot one Benjamin Shaw on the night of December 29, 1929, and on the same night shot Lange. Lange was taken to the Bethesda Hospital in Cincinnati, and operated on, and died on December 31. In addition to the above signed statement of Herman Lange, one Emma Maines testified as a witness. She testified that she heard some shooting near her home; that she heard Mr. Lange hollow, but she did not know who it was at the time; that he was saying, “Oh help me”; “Oh, my God help me”; that he came to the door of her home; that he told her and her husband who he was, and that he had been shot; that he came up to the house and said, “My God help me, I am shot”; that he came in the house; that two of his fingers were shot; that she put him in bed, and he said, “It was killing him, his side was killing him”; that she wiped the perspiration from his head; that “he told me that that was going to kill him, that he wouldn't get over it; that at that time he tossed to and fro on the bed and suffered intense pain; that he said he passed a man on the road, and he recognized him, and went back to get him, and he said he stopped his machine and asked him if he wanted a lift, and the man said he didn't mind, and that he got out of his machine, and he asked the man his name, and he told him his name was Anderson, and then that he shot him.” The evidence of Mrs. Maines further shows that she saw considerable blood around the automobile and on the concrete roads. Mr. Lange remained in her home about one hour before the coroner and a doctor came, and then he was taken to the hospital.

Dr. Sherman, a surgeon of Cincinnati, testified that Lange was brought to the Bethesda Hospital on December 30th about 8:40 a. m.; that he was suffering from a revolver wound in the abdomen; that he was conscious when brought in, and continued so up until the time of his death, with periods of unconsciousness; that the bullet had entered the abdomen about two and one–half inches above the umbilicus; that it passed through the abdominal wall and through the peritoneum and buried itself in the muscles of the back. Lange died on December 31, 1929, at 10:50 p. m. The bullet taken from the body was No. 38.

The statement signed by Lange and heretofore set out was signed about 4 p. m. December 31, 1929, or about six hours before he died.

Ora M. Slater, witness for the state, stated that he and others were at the hospital about 4 p. m. December 31, 1929; that he saw Lange, and that Lange said he realized that he was going to die; that Julius Schwing, Howard L. Shearer, and Judge Lowe were present; that, after they had talked to him, a typewritten statement was made, and Lange signed the same. These witnesses testified that the statement was read over to Lange, and he said it was a true statement, and he then signed it. The signed statement is much like the evidence given by Emma Maines.

The evidence of Lillian Pierce and Elsie Flickner as to the dying declaration was somewhat in conflict with the evidence of the other witnesses. However, Miss Flickner stated that she went on the case about 7 p. m. December 31, and she was there when Lange was pronounced dead at 10:50 p. m.; that she thought he realized at the last that he was going to die. The evidence of the witnesses testifying to the dying declaration was heard and passed upon by the lower court; in some particulars it was in conflict, but not of such a nature that this court will disturb the same.

Considering the foregoing statement of facts as set out, was the signed statement of Lange and the evidence of Emma Maines admissible?

In the case of Williams v. State, 168 Ind. 87, 79 N. E. 1079, 1081, the court said: “If the court is convinced, from the testimony of the witnesses, that the deceased, when he uttered the proffered declaration, was in expectancy of impending dissolution, he should permit the declaration to go to the jury to be by them considered as other evidence under proper instructions of the court. An appellate tribunal is not in a situation to weigh the preliminary evidence as intelligently as the trial judge who had the witnesses before him, and will, therefore, not reverse the action of the lower court in admitting such evidence unless the error is manifest.”

In the case of Gipe v. State, 165 Ind. 433, 75 N. E. 881, 882, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238, the court cites and approves the statement set out in the John's Case, 1 East, Pleas of the Crown, 357, 358, as follows: “If a dying person either declare that he knows his danger, or it is reasonably to be inferred from the wound or state of illness that he was sensible of his danger, the declarations are good evidence.” And the court in the Gipe Case, supra, further said: “That the character of the wound may of itself warrant the inference that the declarant was under a sense of certain and speedy death is settled upon the authorities. *** Its conclusion that the declarations were admissible is one which will not be disturbed on appeal unless it is manifest that the facts did not warrant the conclusion”—citing many cases.

Prof. Wigmore, in discussing the foregoing propositions, says: “In ascertaining this consciousness of approaching death, recourse should naturally be had to all the attending circumstances. It has been contended that only the statements of the declarant could be considered for this purpose; or, less broadly, that the nature of the injury alone could not be sufficient, i. e., in effect, that the declarant must have shown in some way by conduct or language that he knew he was going to die. This, however, is without good sense. We may avail ourselves of any means of inferring the existence of such knowledge; and, if in a given case the nature of the wound is such that the declarant must have realized the situation, our object is sufficiently attained. Such is the settled judicial attitude. The circumstances of each case will show whether the requisite consciousness existed; and it is poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances.” 2 Wigmore, Evidence, § 1442.

In the case of Williams v. State, 196 Ind. 84, 147 N. E. 153, 154, the court, speaking by Myers, J., said: “The competency of this evidence [dying declarations] 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. *** 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 instant case the signed statement of Lange was made only a few hours before his death; his suffering had been intense since the minute he was shot, a serious operation had...