Bridgewater v. State

• Decision Date: 12 December 1899
• Docket Number: 18,878
• Citation: 55 N.E. 737,153 Ind. 560
• Parties: Bridgewater v. The State
• Court: Indiana Supreme Court

55 N.E. 737

153 Ind. 560

Bridgewater v. The State

No. 18,878

Supreme Court of Indiana

December 12, 1899

From the Marion Criminal Court.

Affirmed.

J. B Kealing, M. M. Hugg, J. C. Ruckelshaus and J. W. Bowlus, for appellant.

W. L Taylor, Attorney-General, A. E. Dickey, Merrill Moores, C. C Hadley and M. D. Aber, for State.

OPINION

Dowling, J.

Indictment for murder in the first degree. Trial, and verdict of guilty of murder in the second degree. Motion for new trial overruled, and judgment on verdict. Defendant below appeals.

The insufficiency of the evidence to sustain the verdict, and error of law in giving and refusing to give instructions, are the grounds relied upon for a reversal of the judgment.

Counsel for appellant do not deny that the evidence supports a finding of guilty, but they insist that it does not sustain a finding of guilty of murder in the second degree.

The difference between murder in the second degree and manslaughter, as these crimes are defined by statute, is, that in the former the killing is done purposely and maliciously, but without premeditation; in the latter, the killing is unlawful, without malice express or implied, either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act.

The inquiry upon this branch of the case is reduced to the question whether there is any evidence in the record showing that, in taking the life of the deceased, the appellant did so purposely and maliciously.

The facts, greatly condensed, are as follows: The appellant, Bridgewater, was a married man, and was jealous of his wife. His distrust had involved him in one or more difficulties before the occurrence of the homicide for which he was convicted. Appellant and his wife kept house, but she was employed as a domestic servant at a residence some distance from her own home, and usually remained all the day, and sometimes all night at the place where she was so employed. On leaving appellant's house, on Sunday morning, August 15, 1897, appellant asked his wife to come back that afternoon, but she would not promise to do so. Without the knowledge of appellant, in company with two other women and two men, of whom the deceased was one, she went to a picnic at a place called "Crows Nest," north of Indianapolis near Broad Ripple, returning from thence at about 8 o'clock in the evening in a surrey with the other members of the party. The deceased, Ollister Wharton, accompanied Mrs. Bridgewater from the surrey across a vacant lot to the rear of the residence where she was employed. She sat down on a bench, and Wharton stood in front of her, talking to her, for perhaps five minutes. Appellant approached them, but his wife failed to recognize him, the night being a very dark one. On the near approach of appellant, Wharton, who was a total stranger to appellant, stepped back. Instantly the men clinched. A short struggle took place between them. A moment later, Wharton rushed back to the persons he had just left, saying, "I am cut." He fell on the grass and died almost immediately. Eight wounds were found on his body, one of them penetrating his heart, and three of them being in his back. Wharton's watch, with a broken chain attached, was afterwards found on the ground at the place where the struggle occurred. Appellant's hat was discovered on the porch. The appellant fled to Chicago, where he was afterwards recognized and arrested. The knife with which the homicide was committed was a large pocket knife. Statements made by appellant to the officers who arrested him were proved on the trial, and in them he asserted that as he went onto the porch, where his wife was sitting, he was struck behind the ear; that the blow dazed him; that he clinched with his assailant, got out his knife, and cut him once or twice; that he broke loose, and that both of them got off the porch; that they struggled with each other again until they came to a small pile of sand; that appellant fell on the sand, with Wharton upon him; and that he rolled Wharton over and cut him again. There was no evidence that appellant had ever seen or heard of Wharton before the encounter on the porch. Not a word was spoken during the struggle either by Wharton or appellant. Appellant testified on his own behalf substantially to the circumstances of the homicide, as he had related them to the arresting officers. Wharton was unarmed, nothing but an unopened pocket knife being found upon his person. The wife of the appellant was generally known as Lizzie Johnson, and there was no evidence that the deceased knew that she was a married woman.

Rejecting, as the jury did, as wholly incredible, the testimony of the appellant that the deceased, without provocation, and without a word, struck the appellant as he stepped upon the porch, the evidence fully justified the jury in finding that the killing was done purposely and maliciously. The time and circumstances of the attack, its suddenness and ferocity, the weapon used, the number and character of the wounds, and their location, unmistakably indicated a relentless purpose to kill, coupled with intense malice, which, in its technical sense, is an evil disposition to do injury for the gratification of jealousy, anger, hatred, or other like passion. Malice cannot be inferred from the use of a deadly weapon alone, for such a weapon may, under proper circumstances, be employed in necessary self-defense. But where a homicide is perpetrated by the intentional use of a deadly weapon, in such manner as is likely to, and does, produce death, the law presumes such homicide was committed purposely and maliciously, unless it was done in self-defense, or upon a sudden heat, occasioned by such provocation as is adequate in law to reduce the killing to the grade of manslaughter. McDermott v. State, 89 Ind. 187; Commonwealth v. Webster, 5 Cush. (Mass.) 295; Murphy v. State, 31 Ind. 511; Clem v. State, 31 Ind. 480; Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218, 5 N.E. 203; Howell v. Commonwealth, 67 Va. 995, 26 Gratt. 995; Mitchell v. Commonwealth, 74 Va. 872, 33 Gratt. 872; Kunkle v. State, 32 Ind. 220; Newport v. State, 140 Ind. 299, 39 N.E. 926; Commonwealth v. Drum, 58 Pa. 9; People v. Schryver, 42 N.Y. 1, 1 Am. Rep. 480.

Without undertaking to weigh the evidence, and disregarding all contradictions and explanations, we think it fully supports the verdict, and it is difficult to see how the jury could have reached any other conclusion more favorable to the appellant.

It is objected in the next place that the court erred in giving to the jury instruction numbered twenty-nine, which was in these words: "And if you, and each of you, are satisfied beyond a reasonable doubt, that the defendant did wilfully kill the said Ollister Wharton, but the same was done without malice express or implied, and without premeditation, voluntarily, then you may find the defendant guilty of manslaughter."

Counsel for appellant say that the use of the word wilfully was unauthorized and improper; that it means not...