Myers v. State

• Decision Date: 22 December 1922
• Docket Number: No. 23968.,23968.
• Citation: 192 Ind. 592,137 N.E. 547
• Parties: MYERS v. STATE.
• Court: Indiana Supreme Court

192 Ind. 592

137 N.E. 547

MYERS

v.STATE.

No. 23968.

Supreme Court of Indiana.

Dec. 22, 1922.

Appeal from Criminal Court, Marion County.

Inda Myers was convicted of manslaughter, and she appeals. Reversed, with instructions to grant new trial.Frank A. Symmes, Frank S. Roby and Garth B. Melson, all of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edw. F. White, Deputy Atty. Gen., for the State.

MYERS, J.

Appellant, by indictment, was charged with the crime of murder. Section 2235, Burns' 1914. She was tried by a jury, and convicted of manslaughter. From a judgment that she be imprisoned in the Indiana Women's Prison for a term of not less than 2 years nor more than 21 years, she prosecuted this appeal, assigning as error the overruling of her motion for a new trial. The causes assigned and properly presented as reasons for a new trial are that the verdict of the jury was not sustained by sufficient evidence, and was contrary to law; error of the court in admitting certain testimony offered by the state, and in refusing to admit certain testimony offered by appellant. The questions which we will consider were saved by proper objection and exceptions. The homicide occurred December 4, 1920. The trial was had February 9 and 10, 1921. The plea of self–defense was the sole issue tried.

[1] The first two causes in support of the motion for a new trial rely upon insufficient evidence to sustain the verdict. We have carefully examined the evidence, especially that pertaining to appellant's claim of self–defense. In that respect the evidence before us so strongly supports her contention that, if we were permitted to weigh and pass upon it, we would not hesitate to say that it was sufficient to raise a reasonable doubt which would justify an acquittal of the accused. Trogdon v. State, 133 Ind. 1, 32 N. E. 725;Plummer v. State, 135 Ind. 308, 34 N. E. 968;Clark v. State, 159 Ind. 60, 65, 64 N. E. 589. But we cannot weigh the evidence nor say what inferences the jury might reasonably draw from the evidence or circumstances pertaining to her possession of a deadly weapon, or her action in remaining in the room with a person whom she knew to be a dangerous character without sooner attempting to depart, and when she reasonably might have expected trouble with him. These and any other surroundings bearing upon the necessity, or apparent necessity, as well as the amount of force necessary to employ to resist an attack, can only be determined from the standpoint of the appellant at the time and under all the existing circumstances, and were all proper matters for the jury alone to consider and weigh in determining whether or not she committed the homicide in the reasonable exercise of the right of self–defense, and its conclusion thereon the record before us will not allow us to disturb. King v. State, 187 Ind. 220, 118 N. E. 809;Ellis v. State, 152 Ind. 326, 52 N. E. 82.

[2] In this state, the law of self–defense, as deduced from modern authorities, is:

“That, when a person, being without fault, and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self–defense, his assailant is killed, he is justifiable.” Runyan v. State, 57 Ind. 80, 84, 26 Am. Rep. 52;Smith v. State, 142 Ind. 288, 41 N. E. 595.

On the evening of the homicide, it will not be claimed that appellant was in a place where she had no right to be, and there is no evidence that she brought on the controversy which ended in the fatality.

A few facts and some of appellant's undisputed testimony pertaining to the homicide may be instructive. The accused and her adversary were husband and wife, and both were engaged in the business of photography. Their studio was in an upstairs room of their dwelling. The homicide took place in this room. In October before the homicide, she commenced an action for a divorce, and the papers in that proceeding were, on the evening of the homicide, in the hands of her husband. After the evening meal, of which her husband ate a small portion, he went up to the studio. Later she followed to finish some work she had left in the dark room. On coming out of the dark room she noticed her husband had a knife in his hand, and was just finishing eating an apple. He called her to his desk, where he was sitting, and read to her portions of the complaint which she had filed, and demanded that certain statements included therein should be stricken out, because proof of some of them she proposed to make by using his son by a former marriage as a witness; that he would not have his own flesh and blood go upon the stand against him, and, unless she consented to the elimination of certain allegations of the complaint, he said, “you will never live to get a divorce if you go ahead with it.” In her complaint she asked for the two children, his by a former marriage, to which he also objected. She refused to comply with his request, and told him to see her attorney. He said he would not see her attorney, and it was going to be settled right here and now. He threw down the divorce proceedings, jumped up, threw back the chair, and started toward appellant with an open knife in his hand, using profane, vile, and abusive language toward her, with the threat, “I will kill you.” As he came toward her she stepped back until she was against a cabinet in the room, and told him to stop, not to come any closer, but he continued, both hands up, knife in one hand, and she fired the first shot, and started for the stairway, but, on finding she could not reach it without coming into contact with him, she fired the second shot, when he stopped, and she ran downstairs. A little later she went back up stairs and saw him lying on the floor, then down again, and to the home of a neighbor, and told what she had done, and asked that they call the police. Certain officers came, went into the room where her husband was lying dead, and looked over the room, but failed to discover the knife, the apple peelings, or any disarrangement of the furniture in the room, while a number of other disinterested witnesses who followed the officers into the room found the apple peelings in the waste basket, a turned over chair, and the knife described by appellant. There was much undisputed testimony from other witnesses to the effect that they had heard her adversary threaten to take her life, and that his character for peace and quietude was bad, some of whom had communicated these threats to appellant. There was also undisputed testimony that appellant's reputation for peace and quietude was good. From appellant's testimony, corroborated by others, including her stepchildren, it appears that during their married life he had frequently committed an assault and battery upon her, cursed, villified, and threatened to kill her. This evidence may also serve to illustrate the probable importance of erroneously admitted or erroneously refused testimony, bearing upon the question whether or not the rulings of the trial court in these matters may or may not have been harmful to the accused.

[3][4] The court admitted certain evidence over appellant's objection, and refused to strike it out. The state, as a part of its original case, offered and was permitted to prove by a police officer a conversation he had with another witness, who at the time of the tragedy was in a downstairs room of the Myers home, and was supposed to relate what she heard and saw, as also that which she did not hear and see. This conversation took place the same evening at a neighbor's home, but some time after the homicide. It was not offered as impeaching testimony, but was admitted on the theory that accused's silence regarding declarations made in her presence must be regarded as admissions. This conversation took place in a room adjacent to one in which appellant was sitting. She was nervous and greatly excited, and some witnesses testified that she was crying and hysterical. The door between the two rooms was open, and appellant was about 10 or 12 feet distant from the place where the conversation took place. This preliminary showing was not sufficient to justify the court in permitting the officer to testify to a conversation he had with a third party, and to thus bind the accused on the theory of an admission. The witness related a narrative of a past transaction given him by a third party. It was no part of the res gestæ, and therefore must be regarded as hearsay, and therefore inadmissible.

Dr. G. F. Lee, a witness called by appellant, was asked to state what he heard the deceased say on a certain occasion when he was leaving a room of the dwelling occupied by the deceased at a time when he was ill. The offer to prove was, “I will get...