Keifer v. State

• Citation: 154 N.E. 870,199 Ind. 10
• Decision Date: 25 January 1927
• Docket Number: No. 24814.,24814.
• Parties: KEIFER v. STATE.
• Court: Supreme Court of Indiana

199 Ind. 10

154 N.E. 870

KEIFER

v.STATE.

No. 24814.

Supreme Court of Indiana.

Jan. 25, 1927.

Appeal from Howard Circuit Court; John Marshall, Judge.

William J. Keifer was convicted of manslaughter, and he appeals. Reversed, with instructions.

Joseph C. Herron, of Kokomo, Jenkines & Jenkines, of Logansport, and Carl J. Broo, of Kokomo, for appellant.

Arthur L. Gilliom, Atty. Gen., and U. S. Lish, Former Atty, Gen., for the State.

MYERS, J.

Appellant was charged by indictment in the court below with the crime of murder in the first degree. Upon a trial before a jury he was found guilty of manslaughter. Thereafter the court overruled his motion for a new trial and rendered judgment on the verdict. He is now, in this court, relying alone on the alleged error of the trial court in overruling his motion for a new trial.

Although appellant's motion for a new trial embraces 83 alleged causes, he is here relying only on 18 of them involving various rulings of the trial court made during the trial concerning the admissibility of evidence, and that the verdict of guilty is contrary to law.

At this point, brief recitals from the evidence seem necessary to show the relevancy of the questions here presented, and for a better understanding of our observations regarding them.

On January 14, 1924, and for about 2 years continuously prior thereto, the deceased, Catherine Russell, lived in a two–room apartment over a business room in the city of Kokomo. She was a divorced widow 46 years old. Appellant was past 50 years of age and had been divorced by his wife in 1914, and since that time his home was with his mother. He became acquainted with the deceased in 1915, and for at least 2 years prior to the tragedy he was a frequent visitor at the deceased's apartment at all times of the day and night, a portion of which time he carried a key to her apartment. When arrested he had no key, and said he had not had one for nearly a year. On January 15, 1924, he appeared at police headquarters at about 1 o'clock in the afternoon and told the captain of police, in substance, that he had been up to the Russell apartment and couldn't get in, and he was afraid something had happened to her; that he had been to her rooms the day before when they had a few words and he left, but while on his way downstairs he heard a shot or muffled sound and wished the officers would make some investigation. This officer, with two others, went to the apartment, which was reached by a stairway from the street and by a door from the second floor hallway to each of the rooms. The officers forced the west door which led into the kitchen, then to the front room, where they found the deceased lying on her breast on the floor, close to a chair, dead. Her head was to the west and face to the south, her feet to the east, her left arm under her, and her right arm resting in a leather chair with her hand on a 38–caliber gun in the chair. Under her breast where she lay was a dry pool of blood. Her left leg was burned by the heat of the burning gas in an open stove on the south side of the room. The gun was pointed to the northwest, with four loaded shells and one empty shell in it. It had been recently discharged. A bullet for a 38–caliber gun was found on the floor on the north side of a chair which was 15 or 18 inches from the feet of the deceased, and in this chair, 34 1/2 inches from the floor, was a mark said by the witnesses to have been made by a bullet. From an autopsy on the deceased it was learned that a bullet had entered her body between the fourth and fifth ribs to the left of the sternum, coursed downward, backward, and outward to the tenth rib, where it was deflected directly upward and left the body about 1 1/2 to 2 inches from where the rib was fractured, and 7 1/2 inches to the left of the middle line of the spine. The bullet came out of the body about 9 inches from the ilium, or hip bone. It passed through the left ventricle of the heart and lower lobe of the left lung, causing death immediately. The deceased, when found, had on a house dress, which showed powder burns where the bullet entered. She kept a pistol in her room which her daughter thought was a 32–caliber and was not able to identify the pistol found as belonging to her mother, Appellant testified that he owned a 32–caliber gun which, at the time of the tragedy, was locked up in a safe in his place of business, and that the gun found belonged to the deceased. The appearance of the deceased showed no evidence of a struggle with any one, nor was the furniture out of order.

[1] A post mortem examination of the deceased was held by two practicing physicians, one the coroner. These doctors were called, and gave their testimony as a part of the state's original case. After relating the facts revealed by the autopsy, they were each asked the following question:

“From your examination of this body, and from your tracing the course of the bullet, and from your examination of the chair to which you have referred, and from your experiences as a physician, whether or not, in your opinion. Catherine Russell was standing when she was shot.”

One of these witnesses answered, “I don't believe she was standing;” and the other answered, “It is my opinion that she was not.” These answers were given to the jury over appellant's objection, and to remain as competent evidence over his motion to strike out, which objection and motion were for the reason, in substance, that this question called upon the witnesses to give an opinion based upon facts exhibited by a gunshot wound without first showing special qualifications of the witnesses over that of the jury to draw an opinion from the same facts.

[2] As a general rule, the opinion of experts is not received “if all the facts can be ascertained and made intelligible to the jury, or if it is such as men in general are capable of comprehending and understanding.” National Biscuit Co. v. Nolan (C. C. A.) 138 F. 6.

There was no attempt to show that these physicians were qualified by special experience with firearms, or had made any particular study of the subject of gunshot wounds, other than that obtained by them in the instant case. While our attention has not been called to a decision of this court and we know of...