Ludwig v. The State
| Decision Date | 01 July 1908 |
| Docket Number | 21,144 |
| Citation | 85 N.E. 345,170 Ind. 648 |
| Parties | Ludwig v. The State |
| Court | Indiana Supreme Court |
From St. Joseph Circuit Court; Walter A. Funk, Judge.
Prosecution by the State of Indiana against Albin R. Ludwig. From a judgment of conviction, defendant appeals.
Affirmed.
Anderson Parker & Crabill, for appellant.
James Bingham, Attorney-General; A. G. Cavins, E. M. White and H M. Dowling, for the State.
The appellant appeals from a judgment whereunder he stands convicted of murder in the second degree. The principal question in the case is whether a new trial should have been granted on account of newly-discovered evidence.
In the determination of this question we have carefully abstracted the evidence given upon the trial, but shall only state so much of it here as seems necessary to an understanding of the facts on which our observations are based. The deceased was appellant's wife. She was a large-framed woman, somewhat larger than her husband, and weighed perhaps 170 pounds. It was her purpose to leave appellant, and during the morning of the day on which her death occurred she had been engaged in packing her trunk, in a closet off the east side of the upstairs bedroom. Early in the afternoon of that day smoke was seen issuing from the second story of their home. Access was obtained to said room by means of a ladder, and appellant was found, apparently unconscious, in the room thus entered, suffering from a cut across his throat and also upon his wrists and calves. He was carried down the ladder, and upon being laid on the ground he vomited. The fire was almost wholly in said closet, and we infer that the door thereto was closed, or practically so, as the firemen testified that it was open. The door swung into the room, and against a double window. There seems to have been some plants in one or perhaps both of these windows, and they were probably knocked over by the men in entering the room. A fireman, who reached the scene as appellant was being carried down the ladder, testified that there was a rocking chair and a Boston fern in front of the closet door, and that he had to remove them in order to open it. He testified that the plant was not tipped over, and that the dirt was not spilled out of the pot. The other witnesses do not appear to have observed these facts, and a witness for appellant stated that, to the best of his recollection, there was nothing in front of the door. When the fire was extinguished, it was found that the body of deceased was in the closet. A bloody razor was found in the bedroom. Blood was upon the floor, upon the pillows, and upon the spread of the bed, and there were blood stains on the outside of the closet door. The key to the closet door was broken, and a piece of it was found nearby. There was an empty can in the closet, and there is evidence that it smelled of kerosene, and another witness testified that it smelled of gasoline, although other witnesses testified that they could not detect any smell. There was also a potato masher in the closet, and appellant's brother testified that he afterwards found in the rubbish therein a lamp burner and a large number of pieces of glass. The State introduced evidence of the existence of blood marks upon the stair railing, and upon the frame of the door leading into the summer kitchen. A witness for the State testified that he found a bundle of papers, about as large as the rim of his hat, smoldering in the basement; that they were lying upon a cement shelf or ledge, about one foot from the window, and about eighteen inches from the joist. There was also evidence of appellant's purchase of a can of gasoline that morning; that the can was found in the summer kitchen with a part of the contents (between a pint and a quart) removed, and that the tank of the stove was practically empty. There was no mark of blood upon the can. There was a post-mortem examination held, and the physicians were of opinion that deceased came to her death by burning. The heart and lungs were taken out by the physicians, but it does not appear that the examination was sufficient to determine whether deceased suffered from heart disease. Appellant testified that deceased had had a weak heart for about a year. There was a wound found upon her head, and her throat was bruised. The skull was not fractured. Appellant testified that after returning with the gasoline he put some of it in the tank of the stove, and his wife cooked a boiled dinner on said stove; that after partaking of the coffee he became sick; that after getting a slop jar from out of doors (he is corroborated in this), he took it upstairs, placed it in said closet, and then lay down; that while so doing he thought of an insurance policy which he had taken out in his wife's favor, and, fearing that she would take it away with her, he went to look for it in the dresser, where it was kept; that, not finding it, he lighted a lamp and went into the closet to search her trunk; that he was holding the lamp in his hand when she came up and asked him what he was doing; that words followed about the household goods, and that she, applying an opprobrious name to him, struck at him with a potato masher; that he warded off the blow, and seized her by the throat and held her against the wall. As he explained: "When I let loose--she kind of clawed me--and when I let loose, she went down." He testified that he heard the potato masher fall. Upon being asked to testify what he recollected and what he did after that, appellant answered: "I don't recollect anything after that--the shock." He claimed to have been unconscious from that time until after he was in the hospital, but a physician testified that he was of opinion that appellant was conscious, as he detected resistance in his effort to raise one of appellant's eyelids. Another witness testified that he saw appellant open one of his eyes while being taken to the hospital. The policy was afterwards found in the trunk. There is evidence that appellant stated, while at the hospital, that he lay down on the bed, face down, and when he revived he was cut, and that he did not know how it happened; that he said his wife did the cutting, and that, in response to a question as to why he killed his wife, he answered: "Why did she cut me?" There is also testimony that appellant stated that he did not know how the fire happened, but that he saw his wife take a cup of gasoline upstairs to clean a skirt. Appellant's version of the statement was that he had said that he knew nothing about the oil; that his wife had spoken that morning about taking some spots out of a black skirt, and that she always did so with gasoline; that the person to whom he made the statement said, "Did she?" and that he answered, "I don't know." So far as we have observed, appellant denied all incriminating statements. He particularly denied that he went down stairs after the altercation, and he testified that he did not take any oil, other than that which was in the lamp, into the closet. He offered expert evidence to account for the wound on the head of deceased, on the theory that her head came into contact with one of the wire clothes hooks which were upon the walls of the closet. There was evidence of the unfaithfulness of deceased, of appellant's upbraiding her therefor, of her threats, and of his evident consciousness that a crisis of some character was approaching in their affairs. There was also evidence of many other details of more or less importance in the presentation of the case to the jury, but we do not pause to mention them here.
The newly-discovered testimony, for which a new trial is sought, satisfactorily accounted for the blood stains upon the stair rail and upon the frame of the door leading to the summer kitchen. Such testimony also tended to show that there was no fire in the cellar, and, if there was, to furnish a possible theory of its accidental presence there--that is, from the throwing out of the upper window, by one of the witnesses, of the covering upon the dresser, which was beginning to burn. There was also an attempt, by affidavit, to show how the matters referred to were used by the prosecuting attorney in his closing argument to show that appellant, after rendering his wife unconscious by a blow upon the head, had dragged her into the closet, and, after inflicting certain of the wounds upon his person, had gone down stairs to set the fire in the basement, and to procure gasoline to pour over his wife's clothing, after which he set fire to her.
It was said by this court, speaking by Mitchell, J., in Cooper v. State (1889), 120 Ind. 377, 22 N.E. 320: "New trials for newly-discovered evidence ought only to be granted after the most careful scrutiny of the evidence alleged to have been discovered, and when it raises a violent presumption that a different result would be reached upon a second trial." Citing Thompson, Trials § 2759; Hines v. Driver (1885), 100 Ind. 315. In the case last cited the court said, concerning the Indiana decisions upon the subject: Without again attempting to...
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