Freese v. The State
| Decision Date | 07 January 1903 |
| Docket Number | 19,828 |
| Citation | 65 N.E. 915,159 Ind. 597 |
| Parties | Freese v. The State |
| Court | Indiana Supreme Court |
From Shelby Circuit Court; Douglas Morris, Judge.
Myra Freese was convicted of murder in the second degree, and appeals.
Affirmed.
L. E Ritchey, for appellant.
W. L Taylor, Attorney-General, Merrill Moores and C. C. Hadley for State.
Appellant was indicted jointly with her husband Martin Freese, for the murder of William Gray, on July 25, 1901. Appellant's motion to quash the indictment was overruled, and, upon her plea of not guilty, she was accorded a separate trial by jury, which resulted in a verdict of guilty of murder in the second degree, upon which verdict, over her motion for a new trial, she was sentenced to confinement in the woman's prison for and during her natural life.
The indictment, in substance, charges that appellant and Martin Freese on the 25th day of July, 1901, at the county and State aforesaid, did then and there feloniously, purposely, and with premeditated malice, kill and murder one William Gray, by then and there feloniously, purposely, and with premeditated malice, shooting at, against, and into, and thereby mortally wounding the said William Gray, with a certain deadly weapon, called a revolver, then and there loaded with gunpowder and leaden balls of which mortal wounding the said William Gray then and there instantly died, etc.
The objection to the indictment is that it does not describe the offense with sufficient certainty. The statute requires that an indictment contain "a statement of the facts constituting the offense, in plain and concise language without unnecessary repetition." § 1800 Burns 1901. We do not perceive wherein the indictment before us fails to conform to both the letter and spirit of the statute. No reasonable doubt can arise as to the place, or as to the precise nature of the offense charged, or as to the means by which it was committed, or as to the person against whom it was committed, and, with these things stated in clearness and certainty, the indictment must be held sufficient. The defendant pleaded not guilty and filed a special answer of insanity.
The undisputed facts are these: The appellant is fifty-nine years of age, and lived with her husband in Franklin, Johnson county, Indiana. The deceased had previously boarded with them, and within a few weeks before the homicide, he, as appellant claims, went to her house and assaulted her. Soon thereafter, in informing her daughter about the assault, appellant cried and appeared much excited. The deceased, a stone-mason, on July 25, 1901, was engaged under the Red Mill, repairing the foundation for Mr. Rasp, which mill is in Shelby county, eight or ten miles distant from Franklin. In the forenoon of that day appellant, traveling with her husband in a buggy, went from Franklin to the Red Mill; and as they approached the latter place they were met by Mr. Rasp, the mill owner. A little conversation ensued. Rasp asked Martin Freese if he was looking for a job, and the latter replied that he was. Martin Freese then asked were Billy Gray was, and was informed that he (Gray) was at work under the mill. Rasp then invited appellant to go to the house, which was near by, where she would find women to entertain her; but she declined, remarking that she would go with her husband. Together appellant and her husband proceeded under the mill, where they had been informed Gray was at work, and, seeing Gray, they at once approached him, the husband holding on to appellant's arm, and, without any one uttering a word, appellant presented a revolver and shot him. Gray staggered away about nineteen feet and fell, whereupon appellant walked to him, and standing over him fired another shot into his body. Then, without saying a word, appellant and her husband left the mill together, and went to their buggy where they were joined by Brandenburg, to whom Martin Freese, in the presence of appellant, in explaining the act, said: They then got into the buggy and drove to their home. Gray died almost instantly, and without speaking.
In the course of the trial, and over appellant's objection, the court permitted Joseph McCain, a witness for the State, to testify that about fifteen days before the homicide, Martin Freese, husband of appellant, purchased of witness, who was a dealer, a second-hand revolver, and that he returned with it the same day about noon, and wanted to exchange it, saying, in the absence of his wife (the appellant), that "the revolver wasn't easy enough on trigger; that he wanted it for his wife to shoot cats with, and she didn't like it;" he then exchanged the first one purchased for a second-hand smaller one, and later on in the afternoon of the same day he again returned, and exchanged the second revolver for a third and new one, he paying the dealer one more dollar; that the day before the tragedy Martin came again and wanted to purchase another revolver, and witness inquired what he wanted another one for, and Freese replied that he was going a fishing and he wanted it to shoot fish; that "the other one was for his wife and he wanted one for himself."
Appellant's counsel complains of the admission of this testimony, because, as he insists, the declaration was made in the absence of Mrs. Freese, without her consent or knowledge, and without other evidence of collusion between them. We recognize the general rule to be that the acts and declarations of third persons, made in the absence of the accused, are not admissible in evidence against the latter when placed upon his trial; but, when it appears to the satisfaction of the trial court that a prima facie case of concert to perform the unlawful act has been shown, the fact of such concert may then become a material question in the case, for the ultimate determination of the jury. And when such prima facie case is established to the satisfaction of the court, then it is competent to admit against each other the acts and declarations of the wrongdoers in furtherance of the common purpose. "When a common purpose to prosecute an unlawful scheme has been shown," said Mitchell, J., in McKee v. State, 111 Ind. 378, 12 N.E. 510, "the overt acts or declarations of any one, or all concerned, while engaged in the execution of such purpose, are admissible." Card v. State, 109 Ind. 415; Walton v. State, 88 Ind. 9; Williams v. State, 47 Ind. 568; State v. McGee, 81 Iowa 17, 46 N.W. 764; 1 Greenleaf, Evidence (15th ed.), § 111.
Neither in creating a prima facie case for the court in the first instance, nor in proving the ultimate fact to the jury, is it necessary to show tortious cooperation by evidence of an express agreement to engage in a common purpose leading to the unlawful result; but the fact of combination, as well as the appearance, may arise from inference and circumstantial evidence alone. Archer v. State, 106 Ind. 426, 432, 7 N.E. 225.
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