Dunn v. State

• Decision Date: 18 June 1903
• Citation: 67 N.E. 940
• Parties: DUNN v. STATE.
• Court: Indiana Supreme Court

67 N.E. 940

DUNN

v.STATE.¹

Supreme Court of Indiana.

June 18, 1903.

Appeal from Circuit Court, Allen County; E. O'Rourke, Judge.

Charles W. Dunn was convicted of murder in the first degree, and appeals. Affirmed.

Henry Colerick and Barrett & Morris, for appellant. C. W. Miller, Atty. Gen., Emmett V. Emrick, Pros. Atty., C. C. Hadley, W. C. Geake, L. Rothschild, S. M. Hench, and F. A. Emrick, Dep. Pros. Atty., for the State.

DOWLING, J.

The appellant was indicted for the crime of murder in the first degree. Upon a trial by a jury, he was found guilty as charged, and his punishment was assessed at imprisonment in the State Prison for the term of his life. A motion for a new trial was overruled, and judgment was rendered on the verdict. The only error assigned and not waived is upon the ruling of the court on the motion for a new trial.

Objection is made by counsel for the state to the consideration of the questions sought to be presented on this appeal, and this objection will first be disposed of. It is insisted that the bill of exceptions is not in the record, for the reason that it was not presented to the judge and filed within the time allowed by the statute. The verdict was returned November 7, 1901. Appellant's motion for a new trial was filed November 9, 1901, and overruled December 2, 1901. One hundred and twenty days were given in which to file a bill of exceptions. On the same day a motion in arrest of judgment was made, which was not decided until February 3, 1902, when it was overruled, and judgment was rendered on the verdict. The court on that day gave the appellant 60 days within which to prepare and file a bill of exceptions. The bill was presented to the judge March 6, 1902, and the same was duly signed and afterwards filed March 26, 1902. The signing and filing appear to have taken place on the same day. The points are made that the court was not authorized to grant the 120 days from December 2, 1901, for the filing of the bill, nor to allow 60 days from February 3, 1902, for such presentation and filing; that it does not appear that the bill was filed after it was signed by the judge; and that a copy, and not the original bill containing the evidence, should have been certified to this court. The statute regulating the filing of bills of exceptions in criminal cases is as follows: “All bills of exceptions in a criminal prosecution must be made out and presented to the judge at the time of the trial, or within such time thereafter as the judge may allow, not exceeding sixty days from the time judgment is rendered.” Section 1916, Burns' Rev. St. 1901. At the time the motion for a new trial was overruled, an exception was properly reserved. The 120 days granted by the court for the filing of the bill did not expire until April 1, 1902, nor extend more than 60 days beyond the date of the judgment. The bill was filed 51 days after the judgment was rendered, and was within the time allowed. Besides, it appears that at the time the judgment was rendered the court made a further order allowing the appellant 60 days from that date to prepare and file his bill, and the time so allowed did not expire until April 4, 1902. Under either order, the bill was filed in time. Barnaby v. State, 106 Ind. 539, 7 N. E. 231;Colee v. State, 75 Ind. 511;Hunter v. State, 102 Ind. 428, 1 N. E. 361;Bruce v. State, 141 Ind. 464, 40 N. E. 1069;Hunter v. State, 101 Ind. 406;Herron v. State, 17 Ind. App. 161, 46 N. E. 540. Where the signing and the filing of the bill appear to have been done on the same day, it will be presumed, in the absence of anything to the contrary in the record, that the bill was signed before it was filed. Martin v. State, 148 Ind. 519, 47 N. E. 930;Bradley, etc., Co. v. Whicker, 23 Ind. App. 381, 55 N. E. 490. Under the act of 1897 (Acts 1897, p. 244, c. 162; Burns' Rev. St. 1901, § 638a), it was proper to make the original bill of exceptions containing the evidence a part of the record. The act expressly extended to criminal cases. Adams v. State, 156 Ind. 596, 59 N. E. 24.

We proceed now to an examination of the ruling of the court on the motion for a new trial. The first question to be determined is whether the verdict was contrary to law or to the evidence. The facts proved were briefly these: At the time of the supposed homicide, the appellant, Charles Dunn, was about 61 one years old and married, his wife being an invalid and of weak or unsound mind. The other members of his family were a young woman named Estella Marie Sampleson and one Delph Reed, a hired man. He resided in the village of Wallen, in Allen county, in this state. His house was on the west side of the street, and the lot extended back to an alley running north and south. A barn owned or used by the appellant stood on the alley, some distance northward from his residence. On the morning of July 2, 1901, the appellant rose early, and shortly afterwards drove to a place known as “Hahn's Woods,” several miles distant, where, with other men, he was engaged until near noon in sawing and loading logs to be brought to the city of Ft. Wayne. The weather was warm, and about noon the appellant started for his home; riding a part of the way on a wagon loaded with logs, and walking the remainder of the distance, some 1 1/2 miles. He carried with him a crosscut saw, and arrived at his barn between 1 and 2 o'clock in the afternoon. He was seen placing his saw against the barn. One Edward Cothrell, who lived in the same village, near the appellant's residence, had a daughter, Alice, about 10 years of age. On July 2, 1901, at about 1 o'clock p. m., after eating her dinner at home, Alice went to Dunn's residence. On that day a witness, who lived next over to appellant, saw the child at the window of the dining room of appellant's residence shortly after half past 1 o'clock. She remained at the window some 10 minutes, and then went down the walk in the yard to the alley at the rear of the premises. A few moments afterward screams were heard north of appellant's residence, and in the direction of his barn. About half past 1 o'clock p. m. appellant was seen looking out of one of his barn doors, and immediately afterward he went to another door of the barn, facing his sawmill. After this he came up to his house. He was pale and ate but little. About midnight of that day, appellant, who had not undressed, went to the room of the hired girl, Estella Marie Sampleson, who was sitting up, and asked her if she was not going to bed. He tried to persuade her to go to Toledo, Ohio, without delay, but to give it out that she had gone to Aboit, and he offered to pay her expenses. After the disappearance of Alice Cothrell, appellant learned that screams had been heard in the direction of his barn. He asked Miss Sampleson to go to Hattie Haire, who lived next door, and find out if she had heard them, and “to try to get her on her side.” At the time she testified, this witness (Sampleson) was pregnant, and the appellant was the father of her child. Appellant had attempted to produce an abortion by the use of a wire, and also a pencil. The reputation of the witness for chastity was bad. On the day of the supposed homicide, Edna Cothrell, a sister of Alice, went to appellant's house after supper, and told him that Alice was not at home, and that she wanted him to hunt for her. Appellant said he would do so, and went upstairs, but would not permit Edna to go with him. He came down, and said she was not there, and went out to his barn. To another witness, on the same day, appellant stated that he had searched his mill and stable with a lantern, and that the gypsies had probably taken Alice away. To another, he said that he thought the little girl had run away from home, as she had threatened to do so. To a searching party of some 50 farmers who came to his house, appellant said that they were doing a foolish thing, that he had hunted under every weed on his place the first evening, and that, if she had been there, he would have found her. At another time he said that she was last seen going through the garden, and that she might have had a sunstroke, and that on the day she disappeared, when he finished his dinner, he went out and looked in the garden to see if she was there. While his neighbors were searching his chicken yard, appellant said: “Why in hell are you people looking in there? I have searched the lot thoroughly, and would have found a dead rat if it had been there.” In the presence of a number of witnesses, he declared that he had searched his cisterns for the body of Alice. The hired man, Delph Reed, testified that, some days after the child disappeared, Mrs. Dunn asked her husband why he did not search the cistern (referring to a cistern in the kitchen); that appellant answered: “All right. I will search the cistern after dinner”-but that he did not do so. This witness also stated that Mrs. Dunn on the next day asked appellant why he did not search the cistern. Edna Cothrell, another witness, testified that she, too, asked appellant if he had examined the cistern, and that he said he had not; that she asked him a second time if he had searched it; and that he then said he had, and that there was nothing there. On Sunday, July 6th, four days after the disappearance of Alice Cothrell, a searching party, composed of some 40 or 50 persons, went to appellant's house, determined upon making an examination of the premises. Addressing them, appellant said: “Well, I suppose you people have come to look for the missing girl, but you will not find the girl anywhere near here. She was a silly little thing, and her people abuse her. They had trouble with her that morning, and I think she has left home. You won't find her within a good ways of this place.” Appellant said to the crowd that he had searched the afternoon she disappeared, and up to 10 o'clock that night, and he thought that was enough. One of the neighbors, speaking to appellant...