Gipe v. State

Citation165 Ind. 433,75 N.E. 881
Decision Date01 November 1905
Docket NumberNo. 20,575.,20,575.
PartiesGIPE v. STATE.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

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.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 competency of the declarations was one which the trial court was called on to decide before admitting the testimony. 1 East, Pleas of the Crown, 358; John's Case, Id. 357; Donnelly v. State, 26 N. J. Law, 463; Starkey v. People, 17 Ill. 17; 1 Roscoe, Cr. Ev. *37; 1 Bishop, New Cr. Pro. § 1212; 1 Elliott, Ev. § 355. Its conclusion that the declarations were admissible is one which will not be disturbed on appeal, unless it is manifest that the facts did not warrant the conclusion. Swisher v. Com., 26 Grat. 963, 21 Am. Dec. 330. Professor Wigmore, who discusses the propositions above laid down, says: “In ascertaining this consciousness of approaching death, recourse should naturally be had to the attending circumstances. It has been contended that only the statements of the declarant could be considered for this purpose, or, less broadly, that the nature of the injury alone could not be sufficient; i. e., in effect, that the declarant must have shown in some way by conduct or language that he knew he was going to die. This, however, is without good reason. We may avail ourselves of any means of inferring the existence of such knowledge; and, if in a given case the nature of the wound is such that the declarant must have realized his situation, our object is sufficiently attained. Such is the settled judicial attitude. *** No rule can here be laid down. The circumstances of each case will show whether the requisite consciousness existed, and it is poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances.” 2 Ev. § 1442. In this case it appears that on Sunday afternoon said decedent expressed the belief that she would not get well. Assuming that to have been her opinion then, and considering that she gradually grew worse until the physician had abandoned hope of her recovery, and bearing in mind her extreme weakness, as evidenced by the physician's testimony as to the...

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12 cases
  • Montes v. State
    • United States
    • Indiana Supreme Court
    • August 19, 1975
    ...with a blunt instrument, the exact nature of which was unknown to the grand jury. Appellant relies upon the cases of Gipe v. State (1905), 165 Ind. 433, 75 N.E. 881, and Rice v. State (1936), 211 Ind. 496, 5 N.E.2d 512. Appellant argues that the State failed to prove that the grand jury was......
  • Evans v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • May 8, 1968
    ...prejudice, the conviction was for a lesser-included offense. See Tate v. People, 125 Colo. 527, 247 P.2d 665 (1952); Gipe v. State, 165 Ind. 433, 75 N.E. 881 (1905); People v. Marshall, 366 Mich. 498, 115 N.W.2d 309 (1962); People v. Stahl, 234 Mich. 569, 208 N.W. 685 (1926); Clark v. State......
  • Watts v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • December 15, 1922
    ... ... of inflicting the same nature of injury, in substantially the ... same manner, there is no variance. State v ... Washington, 104 La. 443, 29 So. 55, 81 Am.St.Rep. 141; ... Elliott v. State, 4 Okl. Cr. 224, 111 P. 820, 140 ... Am.St.Rep. 683. Thus, a ... settled that an indictment charging the killing in one manner ... will not support a conviction of killing in a different ... manner. Gipe v. State, 165 Ind. 433, 75 N.E. 881, 1 ... L.R.A. (N. S.) 419, 112 Am, St. Rep. 238. Thus a charge of ... murder by an instrument or blow is not ... ...
  • Com. v. Owens
    • United States
    • Kentucky Court of Appeals
    • April 17, 1923
    ... ... Accordingly, if a person, by ... stimulating the imagination of another or by illusage, puts ... him in such an intense emotional state of grief, fear, or ... what not, that death results, the killing is not recognized ... by the law as a foundation of criminal responsibility, and ... Commonwealth, 85 Ky. 281, 3 S.W. 166, 8 Ky. Law Rep ... 914, 7 Am.St.Rep. 596; State v. Preslar, 48 N.C ... 421; Gipe v. State, 165 Ind. 433, 75 N.E. 881, 1 ... L.R.A. (N. S.) 419, 112 Am.St.Rep. 238 ...          Without ... determining the question of ... ...
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