Shenkenberger v. The State

• Citation: 57 N.E. 519,154 Ind. 630
• Decision Date: 29 May 1900
• Docket Number: 18,940
• Parties: Shenkenberger v. The State
• Court: Indiana Supreme Court

57 N.E. 519

154 Ind. 630

Shenkenberger v. The State

No. 18,940

Supreme Court of Indiana

May 29, 1900

From the Clinton Circuit Court.

Affirmed.

O. E Brumbaugh and J. Combs, for appellant.

W. L Taylor, Attorney-General, Merrill Moores and C. C. Hadley for State.

OPINION

Dowling, J.

Indictment for murder in the first degree by administering poison. Pleas of not guilty, and insanity. Verdict of guilty, and punishment fixed at imprisonment for life. Motion for a new trial overruled, and judgment on verdict.

The errors assigned, and not waived, call in question the action of the court in overruling appellant's motion for a new trial.

The specific charge contained in the indictment is that the appellant, Sarah Shenkenberger, on the 25th day of August, 1898, at the county of Clinton, in the State of Indiana, unlawfully, feloniously, purposely, and with premeditated malice, killed and murdered one Belle Shenkenberger, by then and there, feloniously, etc., administering to the said Belle Shenkenberger a deadly poison, commonly called arsenic, which the said Belle Shenkenberger then and there received at the hands of the said Sarah Shenkenberger, and swallowed, and by reason thereof died; the said Sarah Shenkenberger, then and there, well knowing the said arsenic to be a deadly poison, and wickedly intending thereby feloniously, etc., to kill and murder the said Belle Shenkenberger.

A brief narrative of the material facts shown by the evidence will, perhaps, render more easily intelligible the points necessary to be examined in this opinion.

The appellant, at the time named in the indictment, was about fifty-five years of age, was a married woman, and was living with her husband in the town of Frankfort, in Clinton county, Indiana. Belle Shenkenberger, the person alleged to have been poisoned by her, was the wife of a son of the appellant, who appears to have been a shiftless and roving character, without means, or regular employment, and with little inclination to provide for his family. As a result of his improvidence and neglect, his wife, during a large part of her married life, was compelled to make her home with his parents, going away with her husband several times, but, as often, returning to their house. On the 30th of July, 1898, after a short absence, Belle Shenkenberger, with an infant son, came back to the residence of the appellant. She was pregnant, and her health was not good. August 1st she had a miscarriage, which left her greatly prostrated. Her weakness continued, with occasional periods of improvement in her condition, but, during a considerable part of the time, she was confined to her room or bed. The appellant cooked for her, did her washing and ironing, and waited upon her. For a few days before the death of Belle Shenkenberger, her own mother, and a neighbor or two, assisted appellant in nursing and taking care of her.

On the 19th of August, 1898, appellant purchased at a drug store a nickel's worth of arsenic, ostensibly for the purpose of poisoning rats and a dog owned by a neighbor. A part of the arsenic was thus used, and the residue was placed by appellant in a bottle containing some kind of liquid, which she deposited in a closet. August 25, 1898, appellant prepared a tumbler of broken ice and water for her daughter-in-law, put a spoon in it, and placed it within her reach. Belle Shenkenberger ate some of the ice, and drank a portion of the water. Afterwards, discovering a white powder in the glass, she called the attention of her mother, Mrs. Mahala Sheridan, to the powder, and the latter poured the remainder of the contents of the tumbler into a bottle. On the same day, Belle Shenkenberger was removed from appellant's house to the residence of a sister, in the same town, and two days afterwards she died. The symptoms of the deceased, and the character of her sufferings indicated arsenical poisoning. The appearance of the body, upon a post-mortem examination, confirmed the accuracy of those indications. An analysis of the stomach and its contents revealed the presence of about seventeen grains of arsenic. An analysis of the water poured from the tumbler into the bottle, at the time the deceased called attention to the white powder in the glass, resulted in the discovery of about seven grains of arsenic. The dying declarations of the deceased were: "I know that my mother-in-law poisoned me. That is the way I meet my death." And, "To be poisoned by my mother-in-law;" the preceding part of the latter sentence having been stricken out by the court.

The appellant offered herself as a witness, and was examined. She denied the charge against her, and gave a full and circumstantial account of her relations to her daughter-in-law, and her conduct toward her.

It was insisted, on behalf of the appellant, that there was no proof of ill feeling between her and the deceased; that they had lived together peaceably; that appellant had no motive for the crime of which she was accused; and that there was no proof connecting the appellant with the death of her daughter-in-law. On the other hand counsel for the State contended that the appellant and her husband were in straightened circumstances, and unable without great inconvenience to support the deceased and her child; that the appellant disliked the deceased and had made threats against her; that she wished to get rid of the burden of keeping, nursing, and maintaining her; and that the direct and circumstantial evidence in the case was conclusive of the guilt of the appellant.

No question is made here as to the sufficiency of the evidence to sustain the verdict. We have examined it, however, with the utmost care, and are of the opinion that it fully justified the jury in finding the appellant guilty as charged in the indictment.

The exclusion of evidence offered by appellant is complained of as error; but, under the well settled rules of appellate procedure, the appellant is not in a position to present these rulings of the trial court for review. In each instance, the bill of exceptions shows that counsel for appellant propounded a question to the witness on the stand; that the State objected; that the court sustained the objection to the question; and that appellant, by her counsel, excepted to the ruling of the court. After this adverse ruling, and the exception to it, the offer to make the proof in response to the question followed; the offer was refused, and there was an exception by the appellant.

In Deal v. State, 140 Ind. 354, 371, 39 N.E. 930, and Gunder v. Tibbits, 153 Ind. 591, 607, 608, 55 N.E. 762, it was held that such procedure does not raise any question as to the admissibility of the proposed testimony.

In Gunder v. Tibbits, supra, p. 608, the reason why no question is raised is thus stated: "The exception to the ruling in sustaining the objection to the question presents no question, because no offer to prove by the answer to the pending question was made; the exception affirmed that the court had then and there, by its ruling in sustaining the objection, committed an error; no subsequent action of appellants could make the ruling erroneous if it was not so at the time; now, when the question was no longer pending, the subsequent offer to prove amounted to nothing; an exception can be reserved only to the action of the court in refusing to allow a witness, duly sworn and present, to answer a question. * * * It has been repeatedly decided that the only proper practice is to propound the question to the witness on the stand, and, if objection to the question is made, to state to the court what the examiner proposes to prove by the witness's answer to the question, and then, if the objection is sustained, to reserve an exception to the ruling on the question. Judy v. Citizen, 101 Ind. 18; Higham v. Vanosdol, 101 Ind. 160; Gipe v. Cummins, 116 Ind. 511, 19 N.E. 466; Spence v. Board, etc., 117 Ind. 573, 18 N.E. 513; Kern v. Bridwell, 119 Ind. 226, 21 N.E. 664; LaPlante v. State, 152 Ind. 80, 52 N.E. 452; Sauntman v. Maxwell, ante, 114; Chicago, etc., Co. v. DeBaun, 2 Ind.App. 281, 28 N.E. 447; First Nat. Bank v. Stanley, 4 Ind.App. 213, 30 N.E. 799." See, also, Whitney v. State, ante, 573.

Counsel for appellant next insist that the court erred in admitting in evidence the dying declaration of Belle Shenkenberger, as testified to by H. C. Sheridan. The evidence given by said witness, and appellant's objection thereto, as shown by the record, are as follows: "Q. You may state what she [Belle Shenkenberger] said, now, about the cause of her death? Defendant, by her counsel, objected to the question, for the reason that it is a statement made in the absence of the defendant; that it is merged in the written declaration; that the written statement is the best evidence, if there is one. The court overruled the objection, to which ruling of the court defendant, by her counsel, at the time excepted, and the witness answered. A. She said, 'I know that my mother-in-law poisoned me. That is the way I meet my death.' Q. Did she say anything about it being a strange death to die? A. Yes, sir, she gave the expression, 'This was a strange death to die.' On motion of defendant, this answer was stricken out. Q. What was the remainder of that? A. To be poisoned by her mother-in-law. Defendant, by her counsel, moved to strike the last answer from the record, for the reason that it is the expression of an opinion or conclusion. The court overruled the motion, to which ruling of the court defendant, by her counsel, at the time excepted."

To render a dying declaration admissible, it is not necessary that it be made in the presence of the defendant. It may be, and generally is, made in his absence. There was no evidence or admission...