Baker v. State

• Decision Date: 26 January 1921
• Docket Number: No. 23794.,23794.
• Citation: 129 N.E. 468,190 Ind. 385
• Parties: BAKER v. STATE.
• Court: Indiana Supreme Court

190 Ind. 385

129 N.E. 468

BAKER

v.STATE.

No. 23794.

Supreme Court of Indiana.

Jan. 26, 1921.

Appeal from Circuit Court, St. Joseph County; Arthur L. Hubbard, Judge.

Walter Baker was convicted of murder in the first degree, and he appeals. Affirmed.Arthur L. Gilliom and Eli F. Seebirt, both of South Bend, for appellant.

Ele Stansbury and Remster A. Bingham, both of Indianapolis, and Earl Rowley, Pros. Atty., of La Porte, for the State.

WILLOUGHBY, C. J.

The appellant with two others was charged by indictment with murder in the first degree. When arraigned he pleaded not guilty, and also filed a special plea in writing that he was a person of unsound mind at the time of the commission of the offense alleged in the indictment. To this special plea the appellee filed a reply in general denial. The appellant was tried separately and a verdict returned by the jury finding him guilty of murder in the first degree and fixing his punishment at death. Judgment was rendered on the verdict, and from such judgment appellant appeals. The questions presented by the appeal arise on his motion for a new trial and will be considered in the order in which they are presented in the brief.

It appears that one Wm. E. Anstiss, a witness testifying in behalf of the state, concerning certain statements, which he claims appellant made to him, testified as follows:

I am sheriff of La Porte county. Steve Bartak and Ernest Gariepy are now at the La Porte county jail, at La Porte, Ind. There were no threats made by anybody to Walter Baker when state's Exhibit No. 2 was taken. At Joliet, Ill., I took a statement from Bartak. Bartak's signature is attached to his statement. I saw him sign it. On the morning of the 29th day of August, 1919, in the county jail in La Porte county, I read to Baker the Bartak statement in full.

Q. I wish you would tell the jury what conversation you had with him leading up to that, and how it occurred, and what Baker said, and what you said. A. Why, Walter, in the police station in Toledo, wanted to talk to me, and on the train home; and finally, on the train home, I says: “Now, Walter, I don't believe you had better say anything, and I would rather you wouldn't. If there comes a time when you want to talk and do yourself any good, I will let you know.” The next morning I brought him down I told him I had been thinking it over. “If you want to make a statement to me, I don't think it would do you any harm. I don't know as it would do you any good. I don't think it would do you any harm. *** There is somethings I would like to know.” I said, “Both the other boys have made statements.” I said, “I haven't the statement that was made to the court reporter, but I have Steve's here, and he claims that he didn't fire a shot in that statement, and I will read it to you.” I picked it up and read it. ***

Q. And when you said, “I will read it to you,” I will ask you to state whether or not you read the statement to him at that time. A. Yes, sir; it was laying on the table. I picked it up and read it to him.

Q. And the statement that you read to him, Mr. Anstiss, at that time, is that the statement that has been marked here state's Exhibit No. 4? A. Yes, sir; that is it. Yes, I read all of that to him.

Q. And what did you say to him in connection with this statement state's Exhibit No. 4, and he to you, at the time that you picked it up and says, “I will read it to you”? A. I just merely made that statement. I says: “Now, you can see in that statement that Bartak claims he never fired a shot. I would like to know, Walter, if he done any of the shooting.”

Q. Did you at that time read to him this statement marked state's Exhibit No. 4? A. Yes, sir.

Q. I wish you would take it, Mr. Anstiss, and read to the jury what you read to Walter Baker and tell what Walter Baker said about it.

The witness then read to the jury the statement made by Steve Bartak at Joliet, Ill., August 26, 1919. The effect of this was to place before the jury the confession of Steve Bartak, who was sometimes referred to in appellant's statement as Mutt.

[1][2] Statements or admissions of coconspirators subsequent to the commission of the offense, at a time when the conspiracy is ended or the offense committed for which the conspiracy was formed, are not admissible against the defendant on trial. Kahn v. State, 182 Ind. 1, 105 N. E. 385, and cases there cited. The general rule as stated above is subject to exceptions. That appellant and Bartak were coconspirators cannot be questioned, and the Bartak confession was not admissible unless falling within some exception to the general rule. Whatever appellant said by way of admitting statements made by Bartak would be admissible.

[3] So much of this confession read to the appellant as was explanatory of appellant's own statements, made in response to a question directly addressed thereto, was as competent as anything else said by appellant, on the issue of his insanity.

The sheriff testified:

“I told him there were some things that I wanted to know. I says, for instance, ‘Bartak states that he didn't do any of the shooting.’ I says, ‘Now, to prove that, Walter, I want to read this statement to you.’

Q. Now, what did Baker—when you read that to him, then what was said? A. Well, I says, ‘now what I would like to know, Walter, I would like to know if Bartak done any of the shooting there.’ He sat for a while, and he says, ‘Yes, he shot the first and last shot.”’

The following part of the statement of Bartak, read to appellant, was clearly admissible, as a part of this conversation between the sheriff and appellant:

“The man made a grab for a can, and Baker shot twice. He missed him. The man ran around the counter for the door, and Baker fired three shots. Then we ran. ***

Q. Now, Steve, while you were in that store and had the gun in your hand, did you at any time do any shooting? A. I did not fire one shot. There were five shots fired, and Baker was the one who fired them.”

[4] The only part of Bartak's confession complained of as prejudicial is his statement that—

“I refused to go (into the store to rob Cook), but he said he would shoot me if I did not go. So I went in.”

It is complained that this tended to induce the jury to impose a death sentence, when they might otherwise give life imprisonment. This contention is unreasonable in view of appellant's own confession, which shows that appellant himself was the leader of the trio and gave directions how the work should be done and took a leading part in the execution of it. By his own confession the appellant went to Cook's store and asked him how long he was going to keep open, and then went back and got his confederates and returned to Cook's place. He says:

“Frenchy stood on the corner, and Steve and I went in the store. I opened the door, and the door opens inwardly, and I stood by the door until Steve got in and then shut the door, and Steve was just a little bit ahead of me, and we both pulled out our guns, and Steve he started to swear at him, and he says, ‘God damn you! We will shoot you if you don't put up your hands.’ And he started to back away from us behind the counters to reach for something to throw at us, so I followed him up, and I told him, I says: ‘Now just behave yourself and you won't get hurt. We will treat you all right.’ And he acted as if he wanted to reach for something again, and while he was doing that, I was following him up. Steve rung up the cash register, and I walked around the counter in behind. I followed Cook around the counter to near the ice box corner, when he shoved me and went through a little opening going out in the main part of the store, and as soon as he got by that opening he turned and started to run, and Steve ran over towards the middle of the store, and Cook was just about by the door, and Steve shot, and the understanding when we went in there was that Steve should not shoot until I shot. I told him, ‘Now, don't you shoot if I don't.’ I told him if there was any shooting to be done I would shoot first, and so when he shot first he was about the middle of the floor, I should judge about 15 feet away from Cook, and I was behind him, and he sort of stepped over and shot three times, and Cook was still standing up, and then Steve shot again, and Cook was by the door by that time, and I was almost up to the door. I ran ahead of Mutt, and when Steve shot again Cook fell right when he shot then, and he had a hold of the door, and it was opened a little bit, so I opened the door all the way and jumped over Cook, and Cook was rolling down the steps, jumped over him and ran out, and I got across the street, and I think Mutt was standing there with Cook. It seemed as if Steve stayed there for quite a while. It wasn't very long, but it seemed a long time he was in coming. I was way across the street before he started, and he hollered that I should keep on going, so I kept on going, and he followed me. We ran through yards and fields and alleys until we came to a railroad track. We walked for a long ways down a road, made a couple of turns, and we come to the railroad station; and we loaded the guns again, and Mutt he had three good shells left in his gun, and I had two good ones, and Mutt says, when I told him I had two good shells left, that I shot three times, he said: ‘You are a hell of a shot. If it wasn't for me, he would have got away.’ That all I done was busted the windows, and if it wasn't for him he would have got away, so I didn't know whether I shot him or not. Mutt claims that he shot him, and that I didn't shoot him, so I blamed it onto the new gun. I says I wasn't used to this gun. ‘It is a new gun, and it went off in such a hurry so many times right away.’ I said, ‘It went off in such a big hurry.’

Q. Then you didn't have your old gun? A. No, I had the new one.

Q. And Mutt had the old one? A. Yes.

Q. Why did you give him the old one and you take the new gun? A. I don't know.

Q. Did he...