Ellis v. State

• Decision Date: 29 November 1898
• Docket Number: 18,714
• Parties: Ellis v. The State
• Court: Indiana Supreme Court

52 N.E. 82

152 Ind. 326

Ellis v. The State

No. 18,714

Supreme Court of Indiana

November 29, 1898

Rehearing Denied March 17, 1899.

From the Putnam Circuit Court.

Affirmed.

C. C Matson, for appellant.

W. A Ketcham, Attorney-General, Merrill Moores, John M. Rawley and A. W. Knight, for State.

OPINION

McCabe, J.

The appellant was indicted in the Clay Circuit Court for murder in the first degree, in the killing of John F. Krack. The venue was changed to the Putnam Circuit Court, where a trial resulted in a verdict and judgment of guilty of murder in the second degree; the circuit court having overruled appellant's motion for a new trial. The action of the court in overruling the motion for a new trial is called in question by the assignment of errors as the sole ground upon which a reversal of the judgment is sought.

The first contention of appellant is that the verdict of the jury is not sustained by sufficient evidence, and is contrary to law. There were but two witnesses, besides the defendant, to the transaction. These two witnesses were Mrs. Brewer, the woman with whom appellant was living or boarding, and her daughter, about fourteen years of age. The defendant was a single man, about thirty years of age. The State's evidence consisted alone of the testimony of this family, and the statement made by the defendant to the prosecuting attorney the next day after the death of Krack, and his statement at the coroner's inquest.

The evidence showed that defendant, about fifteen years prior, had purchased a forty-four caliber Remington revolver and belt of a cowboy, and had been fined for carrying the same concealed about his person, and had been prosecuted and convicted of shooting at James Ragland, and, shortly after, he was again fined for an assault on said Ragland with a revolver, and a little later he shot John Ragland in the shoulder while the two were engaged in a controversy. He frequently carried his revolver in a belt while at his work. About two years before, he moved to Clay county from Putnam county, and began boarding with a Mr. Brewer who lived at Center Point, in Clay county. Afterward, Brewer moved to a farm about a mile from there, and appellant went with them and boarded for about a year.

At the request of Mr. Brewer, appellant quit boarding at his house, but he continued to visit the house. A separation between Brewer and his wife ensued, and a divorce was granted to Brewer. Mrs. Brewer moved to Brazil, and appellant assisted her in the removal, and in a few weeks became a boarder in her house. There was some evidence that the character of Krack was not good, but the witnesses to that effect were but three, though he had lived there many years.

On the night of March 9, 1898, appellant attended a Salvation Army meeting with Mrs. Brewer, and they returned home about ten o'clock, or a little later. Mrs. Brewer and her daughter had retired for the night, while appellant was left sitting in the front room, reading, when some one knocked at the front door. And the evidence tended to show that appellant went to the door, and asked who was there. The answer came that it was Fred Krack, and thereupon appellant opened the door. Krack then asked if Mrs. Brewer lived there, and, when told she did, Krack said he desired to stay all night. Appellant replied that that was not a lodging house. Krack said that Mrs. Brewer had told him some time before that she was going to keep boarders, and that, at any time he was in town, to come around and get his meals and stay overnight. Appellant responded that he would ask Mrs. Brewer, and went back into the house; and, after talking with her, he returned to the front door and told Krack that Mrs. Brewer said she could not keep him. Then Krack said he had the money to pay for his night's lodging, and insisted on staying overnight. Appellant then asked Krack if he was not sent there, and, getting no satisfactory answer, appellant asked him a second time, "Now, was not you sent here?" and Krack said, "No." A few words of a similar character were spoken, and then appellant closed the door; and just as he closed the door and started to go back into the room, Krack threw something, which struck the house about three feet from the door, which turned out to be a beer bottle. Appellant then went through the sitting-room and into Mrs. Brewer's bedroom to his trunk, took the key from his pocket, unlocked his trunk, got his forty-four caliber Remington revolver; and, as he started to the front door, Mrs. Brewer said to him, "For God's sake, Fred, don't go out there and go to shooting," and appellant replied, "Do you suppose I am going to allow a man to throw or shoot at me? No." Appellant then went to the front door, opened it and fired at once, the ball striking the deceased in the abdomen, penetrating a vital part, from which he shortly afterwards died. Appellant, without knowing whether the ball took effect, went into the sitting-room and resumed his reading. When the shot was fired, Krack was at the front gate, on the outside, and the gate shut, about fifteen feet from the front door.

Appellant testified that deceased had started toward the gate when appellant closed the door, and, just as he closed the door Krack threw and struck the house. There is no evidence that Krack ever at any time attempted to enter the house. Mrs. Brewer testified that she and appellant had discussed the probability of Mr. Brewer, her former husband, sending some one to her house some time to find out how they were living, and that Ellis had said that she might depend upon it that he would do something of that kind. Appellant claims that, when he opened the door, Krack made a movement as if to shoot or throw at him, and, upon this appearance of things, he fired the fatal shot. But appellant testified that Krack had his...