Epps v. State

• Citation: 1 N.E. 491, 102 Ind. 539
• Case Date: June 10, 1885
• Court: Supreme Court of Indiana

102 Ind. 539
1 N.E. 491

Epps
v.
State.¹

Supreme Court of Indiana.

Filed June 10, 1885.

Appeal from Huntington circuit court.

[1 N.E. 492]

Alfred Moore, L. P. Boyle, and Z. Dungan, for appellant.

The Attorney General, for appellee.

Niblack, J.

The appellant, Charlotte Epps, was indicted, tried, and convicted for the murder of her husband, John Epps, and sentenced to imprisonment for life. Though somewhat informally expressed, the record before us shows that the indictment in this case, known then as No. 299, was, on the fourth judicial day of the October term, 1883, of the

[1 N.E. 493]

Huntington circuit court, returned into open court by the grand jury of Huntington county, indorsed “A True Bill” by their foreman. The indictment was in three counts, each charging murder in the first degree by means of arsenical poison. The first count, after making the usual and formal preliminary recitals, charged the appellant with having, “on the sixth day of June, 1883, killed and murdered the deceased by unlawfully, feloniously, willfully, and maliciously administering to him, the said John Epps, a certain deadly poison, to-wit, a poison commonly called ‘arsenic,’ which he, the said John Epps, then and there received at the hands of her, the said Charlotte Epps, and which he, the said John Epps, then and there swallowed, and by reason of which he, the said John Epps, then and there, and thereby, died. * * *”

The other counts charged substantially the same offense, but not precisely in the same language. In neither was it averred the amount of arsenic which was administered to the deceased. The appellant moved to quash the indictment- First, because the record did not set out the names of the grand jurors who returned the indictment, or show the term for which such grand jury was impaneled, and did not make it appear affirmatively that the person who indorsed the indictment as “a true bill” was, in fact, the grand jury “foreman,” as he purported to be; and, secondly, because the amount of arsenic alleged to have been administered was not averred, upon the ground that it was necessary to show that the amount used was sufficient to produce death. The motion to quash was, nevertheless, overruled, and in that respect no error is apparent. The record discloses enough to authorize the inference that the indictment was duly returned by a lawfully organized grand jury, for the term at which it was presented. Moore, Crim. Law, § 472; Powers v. State, 87 Ind. 144;Heath v. State, No. 12,121.

The further inference from the facts charged in each count of the indictment necessarily was that it was the arsenic administered to the deceased which caused his death, and, in that view, the precise amount so administered was immaterial. Snyder v. State, 59 Ind. 105.

The circuit court heard a part of the argument on the motion to quash the indictment in the absence of the appellant, but she was present when the argument was concluded and when the motion to quash was overruled. It is claimed that thus hearing part of the argument when the appellant was not present was erroneous, and an elaborate argument has been submitted in support of that claim. Section 1786, Rev. St. 1881, provides that “no person prosecuted for any offense punishable by death, or by confinement in the state prison or county jail, shall be tried, unless personally present during the trial.” But this section does not have any relation to motions in a cause not connected with the trial, and cannot in any event be held to require the presence of a prisoner during the argument of a motion merely preliminary to or preceding the trial.

After a demurrer to the indictment had also been overruled, the appellant was arraigned, and entered a plea of not guilty to the charge preferred against her. Afterwards the appellant asked leave to withdraw her plea of not guilty, for the purpose of enabling her to again move to quash the

[1 N.E. 494]

indictment, upon the alleged ground that the previous motion to quash had been made before arraignment, and hence prematurely made; but the circuit court overruled her application, and that is also claimed to have been erroneous.

By section 1762, Rev. St. 1881, it is enacted that, “if the motion to quash be overruled, the defendant shall be arraigned by the reading of the indictment or information to him by the clerk, unless he waive the reading, and he shall then be required to plead immediately thereto, unless further time be given to answer.” This section makes it plain that a motion to quash, as well as a demurrer to, an indictment, in regular order, precedes the arraignment. No cause was, therefore, shown for the withdrawal of the appellant's plea to the indictment, and, in the absence of any showing of such cause, the granting or withholding leave to her to withdraw her plea rested entirely within the discretion of the circuit court.

One William Fall was called to serve as a juror in the cause, and, upon being sworn to answer as to his qualifications to serve in that capacity, answered as follows: “I am a voter and householder of Huntington county, Indiana. I have no particular opinion of the guilt or innocence of the defendant. I have an opinion of it formed from what I have learned of the case from rumor or hearsay, and from reading about it, but don't know whether what I read was the evidence of the case or not.” Counsel for the appellant thereupon asked Fall: “When you have an opinion on any subject, does it take much evidence to remove it?” The circuit court sustained an objection to that question, and refused to permit it to be answered; to which an exception was reserved. Without any further evidence as to his competency, or objection from or further exception by the appellant, Fall was admitted and sworn, and served as a juror in the cause.

One John Martz was also called to serve as a juror, and upon being sworn said: “I am a voter and householder of Huntington county, Indiana, and [have] not formed or expressed any opinion of the guilt or innocence of the defendant.” Counsel for the defendant then propounded to Martz the following questions: “You would not ‘guess' the defendant into the penitentiary, or to hanging her, would you? What, if anything, have you read of the case? You would not convict the defendant of the charge against her to please or displease anybody, would you?” Objections were made, and severally sustained, to these questions; whereupon the appellant peremptorily challenged Martz, and he was, consequently, not permitted to serve on the jury. It may be said generally, that the extent to which a party should be allowed to go in the examination of a person called as a juror is not, in this state, and cannot well be, governed by any fixed rules.

Much rests in the discretion of the courts as to what questions may or may not be answered, but, in practice, very great latitude is, and generally ought to be, indulged. The question asked of Fall had no direct application to the question then before the court, which was as to the extent and the circumstances under which he had formed an opinion.

[1 N.E. 495]

Hence it was not error to sustain an objection to the question. The court ought, perhaps, to have required more evidence to sustain the juror's impartiality, but as the juror was admitted and sworn without objection from the appellant, no question was reserved on the omission of the circuit court in that respect.

The second question addressed to Martz might with propriety have been permitted, but as he had already answered that he had neither formed nor expressed an opinion as to the guilt or innocence of the appellant, and as no other question had been made on his competency as a juror, there was, seemingly, nothing else remaining to which his proposed further examination had any material reference. It is, at all events, not apparent that the circuit court was guilty of any abuse of its discretion in sustaining objections to all of the questions propounded to Martz.

James C. Branyon, an attorney of the Huntington circuit court, assisted in the prosecution of this cause, and was also examined as a witness on behalf of the state. He testified to having been present at the inquest held upon the body of John Epps, and to the fact that the appellant was examined as a witness at the inquest; also that the testimony given by her upon the occasion was reduced to writing by a person designated for that purpose. He furthermore stated that when the testimony of the appellant as it was written out was read over to her, he told her she was at liberty to sign the paper thus read to her or not, as she chose; that there was no power which could compel her to sign it if she did not wish to do so; that the appellant then asked him if signing it would “clear” her of the charge that she had probably had something to do with the death of her then deceased husband, or whether it might not criminate her; that he told her that as to that he did not know; that she thereupon, without apparent further hesitation, signed the paper in question.

Counsel for the appellant then inquired of Mr. Branyon whether, at the time he told the appellant that he did not know whether her signing the statement she had made before the coroner would or would not “clear” her, or might or might not “criminate her,” he did not tell her what was untrue, and what he knew at the time to be untrue. The court sustained an objection to that question, and did not require the witness to answer it, and it is argued that thereby a probable error was committed. At the time the appellant made her statement before the coroner there was no formal accusation against her, and she testified only as a witness, in common with other witnesses, concerning the death of John Epps. In such a case the law required that her testimony should be reduced to writing, and subscribed by her, and returned to the clerk of the circuit court with other papers pertaining to the inquest. Rev. St. 1881,...