Porter v. State

• Decision Date: 29 March 1910
• Docket Number: No. 21,328.,21,328.
• Citation: 173 Ind. 694,91 N.E. 340
• Parties: PORTER v. STATE.
• Court: Indiana Supreme Court

173 Ind. 694

91 N.E. 340

PORTER

v.STATE.

No. 21,328.

Supreme Court of Indiana.

March 29, 1910.

Appeal from Circuit Court, Jay County; John F. La Follette, Judge.

Ira W. Porter was convicted of murder in the second degree, and appeals. Reversed, and new trial ordered.

J. W. Newton, Smith & Moran, and Emerson E. McGriff, for appellant. James Bingham, Alexander G. Cavins, Edward M. White, and William H. Thompson, for the State.

JORDAN, J.

Appellant was charged by an indictment returned by the grand jury of Randolph county, Ind., with having at said county and state on the 15th day of January, 1908, feloniously, purposely, and with premeditated malice, killed and murdered one Mary A. Porter, by shooting her with a certain deadly weapon called a “shotgun,” etc. Upon arraignment to this charge, appellant entered a plea of not guilty. The cause was venued to the Jay circuit court, and upon a trial by jury in the latter court a verdict was returned finding him guilty of murder in the second degree and assessing his punishment at imprisonment in the state prison during life. Over appellant's motion for a new trial, judgment was rendered upon the verdict. From this judgment he appeals, and assigns as errors of the lower court: First, overruling his motion to quash the indictment. Second, overruling his motion for a new trial. Third, denying his petition for an inspection of his testimony given by him before the grand jury which returned the indictment.

The facts in this case disclose that Mary A. Porter, the deceased, was the wife of appellant, and that they had lived together in Randolph county on a farm as husband and wife since 1870 and were the parents of several children. The conviction of appellant rests in the main upon circumstantial evidence; he being the only living eyewitness to the homicide. The theory of his defense as advanced by his counsel is that the killing of his wife was purely the result of the accidental discharge of one of the barrels of a double–barrel shotgun which she at the time was carrying out of the house. His counsel claim that the evidence discloses that, at the time the fatal shot was fired, appellant was 200 feet away from the point where his wife was killed; that he was out in the barn lot, and while there he saw a chicken hawk, and called to his wife, who was at the time at the pump just east of their dwelling house and only a few feet from the door, to bring him his shotgun that he might shoot the hawk; that his wife, in response to the request, went into the house to procure the gun, and, as she was about to pass out through the door with the gun in her hands, its hammers in some manner caught upon the door, or something else, and by this means the hammer of the right barrel exploded the discharge which killed the deceased; that the hammer of the left barrel was weak in the spring and did not strike the cartridge with sufficient force to explode it.

Appellant at the trial testified in his own behalf. He stated that he was 68 years old; that he had lived in Randolph county, Ind., all of his life except two years in Blackford county and two years in Jay county, Ind. He testified that he was married to the deceased in 1870; that he had served during the war of 1861 in company F, Third Ohio cavalry; that he owned 80 acres of real estate in Jackson township, Randolph county. The version which he gave in regard to the manner in which his wife was killed was, briefly, as follows: He testified: That upon the 15th day of January, 1908, his wife lost her life. That on the morning of that day he asked her for a small hammer which was about the house, as he desired to do some repairing. His wife could not find the hammer, and he went out to the barn to get a large hammer. That while he was about the barn he saw a chicken hawk sitting on the fence on the east side of the hog–yard east of the barn. That he went to the door of the barn and saw his wife standing on the well platform. He hollered to her, and said, “Mollie, fetch me the gun quick, and I will kill that big hawk.” She said, “All right,” and whirled around and went into the house. He said: “I started to meet her at the gate. I was, I think, about 15 feet southeast of the gate, south of the wood pile. I saw Mollie coming. She had the gun in her left hand, and, just as the gun was discharged, she just reeled around and sunk right down with her back against the door casing. I said: ‘O, Mollie! O, Mollie!’ and run up to her. Was just about to pick her up, and I saw her brains laying down on the little platform out of the door. I saw that it was a death wound and began to call out, ‘O, Dell! O, Dell!’ to my nearest neighbor, Mr. Jessup. I turned around the northeast corner of the house and went around to the gate out of the yard, down the lane. I called just as quick as I saw the brains laying there.”

Mr. A. L. Jessup, the man whom appellant called “Dell,” at the time his wife was killed, resided on a farm immediately north of and adjoining appellant's farm. This witness testified: That on the 15th day of January, 1908, he and his wife and his brother were in the house. That he heard Porter hollering his name and crying out about 9 o'clock in the morning. “Porter came up the lane toward my house hollering: ‘Dell, O, Dell! O my God! Mollie shot herself.”’ The witness came out and answered Porter (appellant). This witness stated that Porter ran down the lane, and he and his wife followed him and went in Porter's house at the east door and saw brains on the doorstep; saw nothing on the floor except blood and brains and pieces of skull scattered around the floor. That he said to appellant, “This is bad,” and appellant replied, “Yes, this is bad.” “I said to him, ‘How did this happen, Ira?’ ‘Well,’ he said, ‘I was out looking for a big hammer; I wanted to fix my dog kennel.’ He said, ‘I was out to the east of the barn, horse barn; was looking for a hammer, and when I was in the barn, I looked out east of the barn and saw a chicken hawk.’ He said he started out of the west door and saw his wife, Mollie, on the well platform, and hollered for her to bring the gun; he wanted to kill that chicken hawk. Said he got down and started to meet her as she came out with the gun, and when he got there by the wood pile he heard the gun go off, looked up, and saw her sinking. He said, ‘I think she was turning around.’ He said, ‘I don't know whether she was falling, or whether she stumbled, or how she done it.’ Said he saw what was done and began hollering.”

Mrs. Jessup, wife of A. L. Jessup, commonly called “Dell,” corroborated the testimony of her husband. She said that when she heard the report of the gun she and her husband were sitting by a stove in the same room, and that when she heard the report that she glanced out of the window down towards the Porter house, and that she heard Porter hollering, and that she jumped up and ran to the door. It was almost immediately after the report of the gun when she heard the hollering. She went to the door and looked out, and her husband ran to the door and answered Porter. She saw Porter in the lane at the northwest corner of the yard. He was hollering and crying, saying, “My God! Mollie has shot herself.” He said this over and over. Her husband got his coat and ran down the road. Mrs. Jessup testified that a week or so before the death of Mrs. Porter she told her that hawks were killing her chickens.

The state introduced evidence showing that appellant and his wife did not live altogether harmoniously; that at times there was trouble between them; that at one time trouble and ill feeling was engendered in regard to a certain girl, who was a domestic in the family. Appellant's wife discharged this girl for the reason, as she claimed, that on one occasion on entering the room at their home she discovered the girl and appellant in what is termed to have been “a compromising attitude.” The subject of appellant's attention to the girl in question continued to be a matter of discord up to the time of the death of the wife. This evidence, the state claims, tends to show a motive for appellant to rid himself of his wife; that it disclosed that ill feeling existed between the parties, and that their domestic relations were strained. On the other hand, there is evidence to show that the relations between appellant and his wife were friendly and good; that he regarded her as the best woman he had ever seen.

The evidence is voluminous, and as to the sufficiency thereof to sustain the verdict of the jury we express no opinion. The meager statement which we have made in respect to the evidence is only for the purpose of showing the character of the case which appellant's counsel assert, “to say the least, is enveloped in mystery,” and to more fully present the question as to whether appellant was prejudiced by certain rulings of the court of which he complains.

Counsel for appellant argue numerous questions upon which they rely for reversal, among which we mention: First, the insufficiency of the indictment. Second, error of the court in denying appellant's application for an inspection of his own evidence, which he gave to the grand jury that returned the indictment. Third, admission of certain evidence on behalf of the state. Fourth, giving and refusing to give certain instructions to the jury. Fifth, insufficiency of the evidence, etc.

The objection urged to the indictment is that it does not aver or show that Mary A. Porter, the person killed and murdered, was a human being. This objection is devoid of merit. Merrick v. State, 63 Ind. 327.

The court did not err in refusing appellant's application to be furnished a copy of his own testimony given to the grand jury. There is nothing to show that such testimony was in any manner material to him in preparing for or conducting his defense. As a matter of right, under the law, he was not entitled to have an inspection of the evidence in question. Thrawley...