Musser v. State

• Decision Date: 25 June 1901
• Parties: MUSSER v. STATE.
• Court: Indiana Supreme Court

157 Ind. 423

61 N.E. 1

MUSSER

v.STATE.¹

Supreme Court of Indiana.

June 25, 1901.

Appeal from circuit court, Blackford county; Jos. S. Dailey, Special Judge.

Albert Musser was convicted of murder in the first degree, and he appeals. Affirmed.

John T. France, J. Will Kelley, and Jay A. Hindman, for appellant. Wm. L. Taylor, Atty. Gen., Aaron M. Waltz, Pros. Atty., and Geo. W. Bergman, for the State.

MONKS, C. J.

Appellant and one Samuel H. Marshall were charged by indictment in the Jay circuit court with the crime of murder in the first degree, for the killing of Louisa Stolz. On application of the appellant the venue was changed, as to him, to the court below, where a trial resulted in a verdict that appellant was guilty of murder in the first degree, as charged, and assessing his punishment at imprisonment for life. Over his motion for a new trial, final judgment was rendered on the verdict. The only errors assigned call in question the action of the court in overruling appellant's motion for a new trial.

Louisa Stolz, the deceased, was a widow, 74 years old, about 5 feet in height, and weighed about 90 pounds. She resided on a sparsely-settled street in the suburbs of the city of Portland. Immediately back of her residence was located the stave and heading factory of S. H. Adams & Co., and just opposite was the residence of her nearest neighbor, Mrs. Loretta Boes. Mrs. Stolz had lived alone in this residence since the death of her husband in 1889. She was a woman of wealth, and it was generally understood that she kept considerable sums of money about her house. She was eccentric, a recluse, having but few visitors, and a miserly disposition. On Saturday, February 12, 1898, about 1 o'clock in the afternoon, Mont. Mahan, the city marshal of Portland, received through the post office an anonymous postal card notifying him “that the old lady living near the north end heading factory” had been robbed. He at once went to her residence, and, after knocking at the door and receiving no response, went across the street to Mrs. Loretta Boes, a neighbor, and showed her the postal card, and then returned to the business part of the city. Afterwards, on the same day, Mrs. Boes, with two men from the heading factory, went to the residence of Mrs. Louisa Stolz, and, finding the outside kitchen door unlocked, entered the house, and in the sitting room found her dead. Her hands and feet were bound, and her mouth and the upper part of her throat filled with a cotton cloth, and a red handkerchief was bound about her head, and her head and face were covered with a large cotton spread. On one side of her throat were three or four blue marks or bruises; on the other side, but one. The face was dark. The cartilaginous rings composing the trachea were crushed and broken. Death had been produced by strangulation, either by pressure of a human hand upon the throat, or the cloth that had been pressed into the mouth, or both. When the cloth was removed from the mouth, discolored virus and blood, with the odor of putrefaction, followed. The body was highly discolored. Rigor mortis was leaving the body. The lower part of the abdominal cavity was all green, and putrefaction had begun. The day was cold and raw. The temperature at 6 o'clock a. m. of that day was 31° Fahr. The various rooms in the house had been ransacked; drawers opened and emptied of their contents; beds torn up. Valuable papers, such as mortgages, certificates of deposit, and notes, were scattered upon the floor. Among these papers were found some empty cotton money sacks, such as she was known to have carried money ($20 gold pieces) in but a short time before her death. There was dry mud in her hair when the body was found, and also upon the shoulder of her dress. On the outside of the house, and at the north end of the same, were her carpet slippers, soaked with water. It had rained during the day and evening of Friday, February 11th. Near by was what appeared like a print of a shoulder in the mud. There were tracks near by filled with water, and some partly obliterated by the rain. Some of the tracks were made with pointed-toed shoes, and the others with broad-toed shoes.

The postal card received by the city marshal was read in evidence over the objection of appellant. It was proper for the marshal to testify when he received the postal card, and as to the information it contained, as a reason for his going to the residence of Mrs. Stolz, and to that part of the city, and for having informed Mrs. Boes, who afterwards discovered the body of the deceased, of such information. While it may not have been necessary to read the postal card in evidence for this purpose, it was not improper to do so. The court instructed the jury that the postal card and the postmark thereon were only admitted in evidence for the purpose of showing the information upon which the marshal acted in what he did, and as tending to show the time when the same was placed in the post office. No error prejudicial to appellant was committed in admitting the postal card in evidence.

During the progress of the trial. Loretta Boes, a witness for the state, who lived across the street from Mrs. Stolz, testified, without objection, that she “always considered that the deceased was a woman of considerable means.” The state thereupon asked her “whether that information was confined to the people living immediately near, or was it general, if she knew.” To this question appellant objected for the reason “that the same is hearsay and wholly immaterial and irrelevant.” The court overruled the objection, and the witness answered: “Yes; it was generally known that she had money.” It is probably true that the objection to the question was not sufficiently specific to present any question. Elliott, App. Proc. §§ 779-781: Swaim v. Swaim, 134 Ind. 596, 598, 33 N. E. 792;Johnson v. Brown, 130 Ind. 534, 536, 28 N. E. 698;Railroad Co. v. Fettig, 130 Ind. 61, 62, 29 N. E. 407;Railway Co. v. Howard, 124 Ind. 280, 282, 283, 24 N. E. 892. Appellant now urges that it was an attempt to prove by reputation that the deceased kept large sums of money about the house, and “that, because of the fact that Marshall and appellant were known to have had money a day or two after the murder of the deceased, and that her house showed signs of having been robbed, that it would be conclusive evidence that they had robbed her.” There was other evidence from which the jury was authorized to find that the deceased kept a considerable sum of money-paper and gold-about her house. The evidence objected to, however, was clearly proper for another pur pose. The theory of the state was that the crimes of burglary, robbery, and murder were perpetrated on the night of Thursday, February 10, 1898, and that three persons participated therein,-one, a resident of Portland, who had a crippled arm; the others being appellant and said Samuel H. Marshall, who was jointly indicted with him. It appears from the evidence: That said Marshall arrived in the city of Anderson, Ind., on February 7, 1898, being Monday of the week of the murder, and that on the same day appellant was released from the county jail in said city, where he had been imprisoned since the 19th day of January, 1898. That neither of said parties had any money. On Wednesday, February 9th, at about 8 o'clock p. m., appellant came into the boiler room of a paper mill at Muncie, Ind., and told the boiler tender, with whom he was acquainted, that he had come from Anderson, and that a paper man had come with him. Appellant had formerly worked at this mill. Samuel H. Marshall was also a strawboard worker. Appellant slept in the boiler room of the paper mil that night. Samuel H. Marshall came into said paper mill between 10 and 12 o'clock the same night. About 11 o'clock that night he came down into the boiler room from the machine room of the mill and inquired for appellant, and requested the boiler tender to wake appellant at 6 o'clock next morning and send him up to the machine room. Marshall slept in the machine room that night. He told Frank Markle, the machine tender, who was working in the mill, that he had come from Anderson; “that his partner was sleeping downstairs in the boiler room; that his partner had just got out of jail at Anderson; that he was going up the line to pull off a peach; that there was an old lady up the line who was afraid of banks; that she had lots of money and lived all alone; that she was supposed to have between $5,000 and $7,000 in the house; that there was a young fellow up there who had his right arm blown off in a safe-cracking job; that there was no house near, only across the street, and a factory near by; that his partner was down in the boiler room, and he knew where the money was.” The next morning, the 10th, about 6 o'clock, the boiler tender woke the appellant, and told him Marshall was upstairs and wanted to see him, and appellant said, “All right.” He got up and went to the machine room and inquired for Marshall. Appellant and Marshall stepped to one side and talked together for several minutes. On the afternoon of that day, Thursday, February 10, 1898, appellant, Marshall, and a young man of Portland with a crippled arm were seen together in Portland near the water tank of the Grand Rapids & Indiana Railroad. Appellant wore squared-toed shoes. While in company with appellant and Marshall that afternoon, said young man hid at the approach of a person he knew. About 3 o'clock on said afternoon appellant, in company with said young man, visited the stave and heading factory of S. H. Adams & Co., a short distance from the residence of the deceased, and appellant talked with a workman employed in said factory. About 4 o'clock of said afternoon appellant and Marshall were in a restaurant in said city of Portland, and about dusk they were seen together within 1 1/2 squares of the Stolz residence. Between 6 and 7 o'clock the same evening a...