Davidson v. State

• Citation: 34 N.E. 972,135 Ind. 254
• Decision Date: 13 October 1893
• Docket Number: 16,217
• Parties: Davidson v. The State
• Court: Supreme Court of Indiana

34 N.E. 972

135 Ind. 254

Davidson v. The State

No. 16,217

Supreme Court of Indiana

October 13, 1893

From the Whitley Circuit Court.

Judgment affirmed.

S. M Hench and C. M. Dawson, for appellant.

A. G Smith, Attorney-General, P. B. Colerick, Prosecuting Attorney, J. F. Rodabaugh and J. M. Robinson, for State.

OPINION

Coffey, J.

The appellant was indicted in the Allen Circuit Court, on the 7th day of February, 1890, upon a charge of murder in the first degree. Upon his application, the venue of the cause was changed to the Whitley Circuit Court, where a trial resulted in his conviction. He appeals to this court, and assigns as error:

First. That the circuit court erred in overruling his motion to quash the indictment.

Second. That the circuit court erred in overruling his motion for a new trial.

The indictment in the case is in the usual form, and contains all the allegations usually found in an indictment for murder. The objection urged against it is that it does not allege in what county the deceased died.

The supposed defect does not, in fact, exist. The indictment alleges that the appellant inflicted a mortal wound upon the body of the deceased, at Allen county, in this State, at a date named, of which mortal wound he then and there died. This was sufficient. The court did not err in overruling the appellant's motion to quash the indictment. Turpin v. State, 80 Ind. 148; State v. Schultz, 57 Ind. 19.

The evidence in this cause tended to show that Thomas Davidson, Sr., the deceased, at the time of his death, was more than seventy years of age, in good health, but somewhat enfeebled by age.

He was a widower, without children, and for near twenty years had resided alone on a farm in Allen county. In the month of September, 1888, the appellant, an unmarried man, the nephew of the deceased, went to reside with the deceased, who was his uncle. On the 25th day of October, 1888, the deceased executed to the appellant a deed for eighty acres of land, which deed contained an agreement on the part of the appellant to maintain the deceased during the period of his natural life, in consideration of the land so conveyed. In August, 1889, the appellant and the deceased failing to agree, the appellant left his uncle's house and went to live with one Maddens. The distance from Maddens to the house of the deceased was about three miles. Soon after the appellant left the house of the deceased, an action was commenced to set aside the deed above mentioned. On the morning of the 25th day of November, 1889, the deceased was found dead in his stable, some distance from his dwelling house. A postmortem examination disclosed the fact that the deceased had been suffocated, and that his ribs had been broken.

The theory of the State, upon the trial of the cause, was that the deceased had been murdered by the appellant, at his dwelling house, and had afterwards been carried to the stable and deposited near the horses, for the purpose of creating the impression that he had been killed by the horses. The evidence in support of this theory was purely circumstantial. On the trial of the cause, the appellant made numerous objections to the admission of evidence, upon the ground that it was irrelevant and immaterial, but his objections were overruled.

Much of this evidence, when standing alone, would seem to be immaterial; but when considered in connection with the other facts and circumstances in the case, its relevancy becomes apparent.

For the purpose of supporting the theory of the State, we think it was competent to show what property the deceased owned at the time of his death. As the appellant was one of his heirs, it was competent upon the subject of motive. It is always competent to prove the motive which prompted, or might be supposed to prompt, a murder. Jones v. State, 64 Ind. 473.

For this purpose, it was also competent to prove the value of such property. It was not error to permit the State to exhibit to the jury the clothing worn by the deceased at the time of his death, and to permit witnesses to testify to the position of the deceased when found. McDonel v. State, 90 Ind. 320.

All clothing worn by the parties concerned, and all materials in any way forming part of the transaction from which inferences of guilt or innocence may be drawn, may be produced at the trial for the inspection of the jury. Commonwealth v. Brown, 121 Mass. 69; People v. Fernandez, 35 N.Y. 49; State v. Graham, 74 N.C. 646.

In such cases, it is the province of the jury to determine what inferences are to be drawn from the condition and appearance of the clothing, in connection with the other evidence in the cause. Story v. State, 99 Ind. 413.

It was competent for the State to prove any declaration made by the appellant tending to show the relations between him and the deceased, and the state of feeling between them; and it was also competent for the State to fully show, in support of its theory, the condition of things at the house of the deceased immediately after the body was found. Goodwin v. State, 96 Ind. 550; Koerner v. State, 98 Ind. 7.

So, too, it was proper to prove that the deceased was old and feeble, and that the appellant was young, stout, and vigorous, in support of the theory that the deceased was suffocated by the appellant. Wharton & Stille's Med. Jurisprudence, section 902, pp. 802-3.

It was not error to admit in evidence the deed executed by the deceased to the appellant, in consideration of which the appellant had agreed to support the deceased during his life. It was competent upon the subject of motive. The objection made by the appellant to the effect that the deed was admissible because the acknowledgment was void, having been taken before a notary public who was, at the time, filling the office of deputy county recorder, is not tenable. The notary was, at least, an officer de facto, and his acts as to third parties were valid. Leech v. State, ex rel., 78 Ind. 570; Baker v. Wambaugh, 99 Ind. 312.

Generally, an acknowledgment is not essential to the validity of a deed as between the parties to it, but is only necessary in order to admit the deed to record in the proper recorder's office. Hubble v. Wright, 23 Ind. 322; Mays v. Hedges, 79 Ind. 288; Westhafer v. Patterson, 120 Ind. 459, 22 N.E. 414.

The statements made by the defendant before the coroner, at the inquest upon the body of the deceased, having been signed by the appellant, were properly admitted in evidence against him on the trial of this cause, it appearing that he voluntarily testified at such inquest. Snyder v. State, 59 Ind. 105; Epps v. State, 102 Ind. 539, 1 N.E. 491; Brown v. State, 71 Ind. 470; Sage v. State, 127 Ind. 15, 26 N.E. 667.

In order to admit such statement in evidence, it was not necessary, in our opinion, that the State should have introduced in evidence all the proceedings had before the coroner. The statements of the appellant were the only matters material to the issue in this case.

Under our statute, section 1802, R. S. 1881, all confessions by an accused are admissible in evidence against him, except such as are made under the influence of fear produced by threats. Benson v. State, 119 Ind. 488, 21 N.E. 1109; Harding v. State, 54 Ind. 359; State v. Freeman, 12 Ind. 100; O'Brien v. State, 125 Ind. 38, 25 N.E. 137.

It is earnestly contended by the appellant that the circuit court erred in the admission of certain expert testimony given by physicians called by the State. The objections urged against this testimony relate: 1, to the form of the questions by which it was elicited; 2, to the fact that the hypothetical questions propounded to the witnesses did not embrace all the facts proved upon the particular subject under investigation.

Under the first objection, it is contended that the form of the questions required the experts to answer as to matters which it was the exclusive right of the jury to determine.

We do not think the questions will bear this construction. An expert witness may be asked whether a certain wound did or did not, in his opinion, produce death, or whether such wound was or was not necessarily fatal. Batten v. State, 80 Ind. 394; Epps v. State, supra.

The questions to which the appellant urges his objection did nothing more than call for the opinion of the witnesses upon subjects to which they were competent, as experts, to testify.

As to the second objection, it would seem to be sufficient to say that it was not necessary that the hypothetical questions propounded to the witnesses should embrace all the facts proven upon the particular subject under investigation.

In the examination of expert witnesses, counsel may embrace in his hypothetical question such facts as he may deem established by the evidence, and if opposing counsel does not think all the facts established are included in such question he may include them in questions propounded on cross-examination. Any other course would result in endless wrangles over the question as to what facts were, and what were not, established. Goodwin v. State, supra; Roger's Expert Testimony, 39; Stearns v. Field, 90 N.Y. 640.

The court did not err in refusing to allow the appellant to prove, on the cross-examination of one of the State's witnesses, that the deceased had the reputation of being a hard, quarrelsome, and strong man, ready to fight at any time. Such matter was not cross-examination. Futhermore, under the theory upon which the case was tried it was wholly immaterial.

Nor did the court err in refusing to permit the appellant to prove that he said, in the absence of the deceased, that he could not live with the deceased, and that as soon as he got his wood and crops off he intended to deed the eighty acre tract of land back...