Kiefer v. State, No. 29580

Docket NºNo. 29580
Citation153 N.E.2d 899, 239 Ind. 103
Case DateNovember 18, 1958
CourtSupreme Court of Indiana

Page 899

153 N.E.2d 899
239 Ind. 103
Richard E. KIEFER, Appellant,
v.
STATE of Indiana, Appellee.
No. 29580.
Supreme Court of Indiana.
Nov. 18, 1958.
Rehearing Denied Dec. 29, 1958.

[239 Ind. 105] Barrie C. Tremper, Tremper & Kenny, Ft. Wayne, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Deputy Atty. Gen., for appellee.

BOBBITT, Chief Justice.

Appellant was charged by indictment with the murder of his wife, tried by jury, found guilty of murder in the first degree and sentenced to death in the electric chair.

The uncontradicted evidence shows that on the morning of January 15, 1957, while appellant's wife was in the basement of their home doing the family laundry, he went into the basement to discuss with her their financial problems and an argument followed, during [239 Ind. 106] which appellant hit his wife. Following her resistance he threw her to the floor and began beating her with a hammer. Their small daughter, hearing the commotion in the basement, ran downstairs and attempted to stop her father from beating her mother, whereupon appellant struck the child with the hammer. He continued to strike both with the hammer and when they were 'knocked out' appellant then went upstairs to the second floor and got a hunting knife and returned to the basement where he slashed the bodies of both his wife and daughter, causing their death.

Appellant admits these acts. However, we do not pass upon the guilt or innocence of a defendant. Our duty is to see that he has a fair trial. Even the perpetrator of a crime as heinous as that portrayed by the evidence in this case, is entitled to a fair trial and the protection of his rights as an American citizen. It is with this thought in mind that we approach the questions presented by this appeal.

Only Specifications 1 and 4 of the motion for a new trial are discussed in appellant's brief and all others are deemed waived.

Appellant asserts that (1) the trial court erred in admitting into evidence, over his objections, State's Exhibits Nos. 8, 10, 11, 12, 13 and 14; and (2) the evidence is not sufficient to show malice and premeditation.

These propositions present four questions for our consideration; and, notwithstanding the result we have reached, all will be considered because some are likely to arise on a retrial.

First: Exhibit 8 is a photograph of the child lying on the basement floor near the steps and showing large knife wounds on

Page 900

her face and body. Appellant asserts [239 Ind. 107] that such exhibit was 'not material or relevant to the issues before the Court,' since he was on trial for the death of his wife and not for the death of his child.

As a general rule a photograph that is 'entirely irrelevant and immaterial to any issue in the cause and which is of such a character as to divert the minds of the jury to improper or irrelevant considerations should be excluded from evidence.' 20 Am.Jur., Evidence, § 729, p. 609; Underhill's Cr. Evidence, 5th Ed., § 117, p. 16 (1958 Supp.).

However, this rule is not applicable to State's Exhibit No. 8 because under the evidence in the record here the killing of the child was part of the res gestae. See: 22 C.J.S. Criminal Law § 662, p. 1044.

The rule by which we must be guided in our consideration of this question is stated in 22 C.J.S. Criminal Law § 663, p. 1049, as follows:

'Evidence of another and distinct crime is admissible where it was committed as part of the same transaction and forms part of the res gestae.' See also: Starr v. State, 1903, 160 Ind. 661, 67 N.E. 527; Gallaher v. State, 1885, 101 Ind. 411, 412; Harding v. State, 1876, 54 Ind. 359, 366.

This court was faced with a similar question in Starr v. State, supra, where appellant was charged with assault and battery with intent to murder William Rebelskey, one of two brothers, William and Otto, whom he had overtaken and struck with a hatchet while they were on their way to a nearby town.

The court there, over the objections of appellant, permitted a witness to testify that he saw both brothers just after the attack, one (Otto) lying on a snowdrift and the other (the prosecuting witness William) standing near their buggy with a cut in his temple. Appellant[239 Ind. 108] contended that the evidence relating to Otto was incompetent. At page 669 of 160 Ind. at page 529 of 67 N.E. this court said:

'It was a necessary part of the description of the situation as it appeared a few moments after the cutting. The wounding of the two men by the appellant occurred in the same encounter, was done with the same weapon, and was almost simultaneous. While the attack upon each may have constituted a separate offense, the cutting of each of the injured persons was in one and the same transaction, and constituted a part of the res gestae.'

The situation in that case seems to us to be similar to that pertaining to the introduction of the photograph of the child in the case at bar. The killing of the child herein was simultaneous with the attack on the wife; it was done with the same weapon; and it sprang out of, and was a result of, the encounter between appellant and his wife. Exhibit No. 8 was, therefore, properly admitted.

Second: Exhibits Nos. 9, 10, 11 and 12 are photographs of the wife's body taken from different angles at the scene of the crime. Even though these photographs representing Exhibits Nos. 10, 11 and 12 may have been, to some degree, repetitious and cumulative, and are gruesome in character, they serve to elucidate and explain relevant oral testimony given at the trial and they were properly admitted for the purpose of showing fully the scene of the crime, the nature of the wounds of the victim, and the condition of the basement immediately after the crime was committed. Cf. Davidson v. State, 1893, 135 Ind. 254, 259, 34 N.E. 972.

Third: Was the evidence sufficient to show malice and premeditation?

[239 Ind. 109] Malice may be presumed from the intentional use of a deadly weapon in such a manner as is likely to cause death. Myles v. State, 1955, 234 Ind. 129, 133, 124 N.E.2d 205, certiorari denied 349 U.S. 932, 75

Page 901

S.Ct. 776, 99 L.Ed. 1262; Everett v. State, 1935, 208 Ind. 145, 149, 195 N.E. 77.

'Premeditation is an intent before the act of killing. It means entertainment by the mind of a design to kill, and is often defined as 'thought of beforehand,' * * *.' 1 Warren on Homicide, § 70, p. 293. See also: Koerner v. State, 1884, 98 Ind. 7, 8-10.

This court recently said in Heglin v. State, 1957, 236 Ind. 350, 354, 140 N.E.2d 98, 100:

'Premeditation by its very nature is not instantaneous, but requires some time interval. * * * It is of the very essence of the crime that there should be time and opportunity for deliberation or premeditation after the intent to kill has been formed in the mind.'

No appreciable length of time is required to exist for premeditation.

'It is sufficient if defendant having time to think weighs the purpose to kill another long enough to form and does form a design to do so, if at a subsequent time, no matter how soon or how remote, the design was executed.' 1 Warren on Homicide, § 78, p. 381. See also: Fahnestock v. State, 1864, 23 Ind. 231, 263; Aszman v. State, 1890, 123 Ind. 347, 351, 352, 24 N.E. 123, 8 L.R.A. 33; Everett v. State, supra, 1935, 208 Ind. 145, 149-150, 195 N.E. 77.

In People v. fossetti, 1908, 7 Cal.App. 629, 95 P. 384, during the course of angry words, in the room of a mutual friend, appellant called the deceased a 'liar.' Deceased then struck the appellant on the cheek and knocked him over on the bed. Appellant then left the [239 Ind. 110] room, got a revolver and returned and shot the deceased. An eye witness, who was also in the room at the time, testified that as the appellant went out the door he said to the deceased, 'I'll fix you.' This witness further testified that from the time the appellant went out the door and said, 'I'll fix you,' until the fatal shot was fired was 'inside of a minute.' It was there contended that the evidence showed that the fatal shot was fired during a sudden quarrel or heat of passion, and, at most, only constituted the crime of manslaughter.

At page 386 of 95 P. the Court of Appeal said:

'The defendant deliberately left the room, according to the testimony, after saying that he would 'fix' deceased. He procured a pistol and returned, and, without warning, fired the shot that caused the death of Moseley. In such case the jury are the exclusive judges of the facts, and it is for the jury to say whether the killing was the result of malice and premeditation, or whether it occurred during a sudden quarrel or heat of passion. No definite time was necessary after defendant was struck for his angry passions to cool. The jury had the right to infer when he left the room to procure his pistol that he did so with the deliberate and willful intention of killing deceased.'

We think the circumstances in the case at bar are analogous to those in People v. Fossetti, supra. Applying the reasoning in that case to the facts in the case at bar leads us to the same conclusion.

The appellant herein left the basement, went upstairs to the bedroom on the second floor where he got his hunting knife. He then returned to the basement where he stabbed and cut, first the body of his wife, then that of the little girl.

A police officer testified, as a witness for the State, as follows:

239 Ind. 111] 'I asked him [appellant] why he got the knife, and he replied that he wanted to make sure they were dead.'

A deputy coroner of Allen County testified that he conducted an autopsy upon the body of appellant's wife from which he determined that the cause of death was 'due

Page 902

to multiple lacerations from stab wounds about the chest and abdomen.'

It was for the jury to decide whether the killing in this case was the result of premeditated malice or whether it resulted from a sudden quarrel or heat of passion; Booher v. State, 1901, 156...

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110 practice notes
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 2001
    ...v. State, 436 N.E.2d 1125, 1128 (Ind.1982); Warrenburg v. State, 260 Ind. 572, 574-76, 298 N.E.2d 434, 435-6 (1973); cf., Kiefer v. State, 239 Ind. 103, 116-18, 153 N.E.2d 899, 904-05 We do consider these close-up photographs viewing multiple gunshot and 742 N.E.2d 495 stab wounds to the vi......
  • Drollinger v. State, No. 778S146
    • United States
    • Indiana Supreme Court of Indiana
    • August 26, 1980
    ...the cause of death. They were, therefore, properly admitted. Grooms v. State, supra ; Murphy v. State, supra. Cf. Kiefer v. State, (1958) 239 Ind. 103, 153 N.E.2d 899. Because these pictures depicted different aspects of the case, they were not repetitious or cumulative. We find no abuse of......
  • State v. Adams, No. 39402
    • United States
    • United States State Supreme Court of Washington
    • September 11, 1969
    ...which show the body of the deceased after autopsy have frequently been held inadmissible upon this ground (see Kiefer v. State, 239 Ind. 103, 153 N.E.2d 899 (1958) and cases cited therein) particularly when they are used to Page 684 illustrate a physician's testimony which was not disputed ......
  • Berry v. State, No. CR86-47
    • United States
    • Supreme Court of Arkansas
    • November 3, 1986
    ...211 Page 452 La. 572, [290 Ark. 231] 30 So.2d 434 (1947). Those made during or after an autopsy are most often condemned, Kiefer v. State, 239 Ind. 103, 153 N.E.2d 899 (1958); State v. Bucanis, supra, because they present an even more horrifying sight and show the body in an altered conditi......
  • Request a trial to view additional results
110 cases
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 2001
    ...v. State, 436 N.E.2d 1125, 1128 (Ind.1982); Warrenburg v. State, 260 Ind. 572, 574-76, 298 N.E.2d 434, 435-6 (1973); cf., Kiefer v. State, 239 Ind. 103, 116-18, 153 N.E.2d 899, 904-05 We do consider these close-up photographs viewing multiple gunshot and 742 N.E.2d 495 stab wounds to the vi......
  • Drollinger v. State, No. 778S146
    • United States
    • Indiana Supreme Court of Indiana
    • August 26, 1980
    ...the cause of death. They were, therefore, properly admitted. Grooms v. State, supra ; Murphy v. State, supra. Cf. Kiefer v. State, (1958) 239 Ind. 103, 153 N.E.2d 899. Because these pictures depicted different aspects of the case, they were not repetitious or cumulative. We find no abuse of......
  • State v. Adams, No. 39402
    • United States
    • United States State Supreme Court of Washington
    • September 11, 1969
    ...which show the body of the deceased after autopsy have frequently been held inadmissible upon this ground (see Kiefer v. State, 239 Ind. 103, 153 N.E.2d 899 (1958) and cases cited therein) particularly when they are used to Page 684 illustrate a physician's testimony which was not disputed ......
  • Berry v. State, No. CR86-47
    • United States
    • Supreme Court of Arkansas
    • November 3, 1986
    ...211 Page 452 La. 572, [290 Ark. 231] 30 So.2d 434 (1947). Those made during or after an autopsy are most often condemned, Kiefer v. State, 239 Ind. 103, 153 N.E.2d 899 (1958); State v. Bucanis, supra, because they present an even more horrifying sight and show the body in an altered conditi......
  • Request a trial to view additional results

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