Gipe v. State, No. 20,575.

• Docket Nº: No. 20,575.
• Citation: 165 Ind. 433, 75 N.E. 881
• Case Date: November 01, 1905
• Court: Supreme Court of Indiana

165 Ind. 433
75 N.E. 881

GIPE
v.
STATE.

No. 20,575.

Supreme Court of Indiana.

Nov. 1, 1905.

Appeal from Circuit Court, Henry County; John M. Morris, Judge.

Ollie Gipe was convicted of the crime of involuntary manslaughter, on which judgment was pronounced, and he appeals. Reversed.

[75 N.E. 882]

F. C. Gause and W. A. Brown, for appellant. C. W. Miller, Atty. Gen., C. C. Hadley, W. C. Geake, and L. G. Rothschild, for the State.

GILLETT, J.

Appellant was charged by indictment with the murder of one Mollie Starbuck and her infant child. There was a verdict of involuntary manslaughter, on which judgment was pronounced.

The first question which this appeal presents is whether the trial court erred in admitting as dying declarations certain statements of said Mollie Starbuck. On a Saturday night, between the hours of 9 and 10, said decedent was found, in a frenzied condition, with said infant, in a shallow well, situate about 1,000 feet to the rear of her house. She and the child were the only members of her family who were at home during the evening, and there was evidence tending to show that the house was broken into that night, at some hour previous to the time that they were found in the well. Said declarant died about 4 a. m. the next Monday. One of the attending physicians testified that the cause of death was acute pulmonary congestion, while another physician, in testifying, ascribed her death to shock, fright, and exhaustion. The evidence warranted the conclusion that her condition and death were due to her experience of the preceding Saturday night. She continued very ill from the time she was found. She was in a highly nervous condition, and was suffering from pulmonary hemorrhage. She was better Sunday morning, but during that time, and up to her death, her breathing was heavy and labored. Between 2 and 3 p. m. of said day she asked one of the attending physicians whether he thought she could get well. He told her he had hopes of her recovery, that she had improved nicely, and he saw no reason why she should not get well. She replied that she did not believe she would. Between that time and midnight Sunday, when the declarations were made, there was a gradual decline in her condition, and said physician testified that at the latter hour he had no hope of her recovery. The declarations in question, and the circumstances in which they were made, are thus stated by said witness: “At one of her waking spells I said to her: ‘Mollie,’ I says, ‘do you know me?’ And she made no answer, and she looked at me, and I said: ‘If you cannot answer me, Mollie’ (she was getting weak), ‘raise your hand if you know me,’ and she raised her hand or finger. And I said: ‘There are some things we want to know, and very badly, and, if you can possibly let us know any way whatever, do so.’ I said: ‘Was it some bad man carried you off?’ And she summoned a great effort and said, ‘Yes.’ The nurse asked her then: ‘Did they come in at the window?’ And she said, ‘Yes,’ and looked toward the window where the screen had been torn away. And then the nurse asked her if there were more than one, and she said, ‘I don't know.’ And then I asked her if she recognized any one, and she made some answer, but we could not understand her-she was getting very weak.”

With this statement of the facts, we proceed to the discussion of the admissibility of said declarations. In John's Case, as reported in 1 East, Pleas of the Crown, 357, 358, from the MSS. of Buller, J., it appears that it was the unanimous opinion of the judges that “if a dying person either declare that he knows his danger, or it is reasonably to be inferred from the wound or state of illness that he was sensible of his danger, the declarations are good evidence.” That the character of the wound may of itself warrant the inference that the declarant was under a sense of certain and speedy death is settled upon the authorities, Woodcock's Case, 2 Leach, 563; Anthony v. State, 19 Tenn. 265, 33 Am. Dec. 143;McLean v. State, 16 Ala. 672; Hill's Case, 2 Grat. 594, 608; 3 Russell on Crimes (9th American from 4th London Ed.) page 250; and see Green v. State, 154 Ind. 655, 57 N. E. 637. The question as to the...