Smith v. State
| Decision Date | 24 June 1926 |
| Docket Number | 24,788 |
| Citation | 152 N.E. 803,198 Ind. 156 |
| Parties | Smith v. State of Indiana |
| Court | Indiana Supreme Court |
1. SEARCHES AND SEIZURES.---Search warrant presumed legal in absence of the affidavit and warrant from the record on appeal.---Where the record on appeal does not contain the affidavit for a search warrant nor the search warrant itself the warrant will be assumed to have been legal in all respects. p. 160.
2. SEARCHES AND SEIZURES.---A warrant for the search of certain premises is properly served when made at place designated in warrant itself, and need not be made on the owner of the premises. p. 160.
3 WITNESSES.---The common-law rule as to the competency of witnesses has been abrogated in Indiana except in so far as retained by the exceptions in the statute. p. 162.
4. WITNESSES.---Privileged communications between husband and wife not limited to oral communications.---Privileged communications between a husband and wife are not confined to mere audible communications to each other, but include knowledge communicated by an act which would not have been done by one spouse in the presence or within the sight of the other but for the confidence between them by reason of the marital relation. p. 162.
5. WITNESSES.---Testimony of wife that she saw her husband dump some object from a trunk into a hole in which deceased's body was found, was not incompetent as a privileged communication.---In a prosecution of a husband for murder testimony of wife that she saw her husband wheel a trunk in a wheelbarrow and dump some object from the trunk into a hole in the ground in which deceased's body was later found was not disqualified as a privileged communication within subd. 6 of 550 Burns 1926, 520 Burns 1914, as the manner in which the act was done showed that it was not a confidential communication. p. 162.
6. HOMICIDE.---Evidence, though circumstantial, held sufficient to sustain conviction for murder in the first degree. p. 163.
From Marshall Circuit Court; Albert Ward, Special Judge.
Raymond B. Smith was convicted of murder, and he appeals.
Affirmed.
Martindale & Martindale, for appellant.
Arthur L. Gilliom, Attorney-General and Edward J. Lennon, Jr., Deputy Attorney-General, for the State.
A jury, by its verdict, found appellant guilty of murder in the first degree, and that he be imprisoned during life. The appeal from the judgment upon the verdict is founded upon the alleged error by the trial court, overruling the motion for a new trial.
The evidence sufficient to present the errors complained of, is: That appellant with his wife resided upon their farm in Marshall county, Indiana. Appellant's maternal grandmother, Frances C. Sweet, resided with them. March 2, 1922, at 1 o'clock p. m., appellant's wife went to Culver, Indiana, to visit her sister, leaving appellant and Mrs. Sweet at home. This was the last time appellant's wife saw the grandmother alive. The wife returned home at 4 o'clock the same afternoon, and found her husband at home on the farm, alone. Upon arrival, the wife went into the kitchen and noticed that the floor had been mopped; the rugs were in different places than she had left them; the curtains by the pantry were spattered with blood; a bad smell was in the room; and shot were on the floor under the oil stove. When appellant and his wife moved on this farm in August, 1921, there was an outhouse or toilet located southeast of the house, and south of the path which led from the house to the barn. A month later, appellant with the assistance of a laborer moved this outhouse to the north side of the path. March 5, 1922, three days after appellant's wife had visited her sister in Culver, while standing before the kitchen window, she saw appellant wheel a wheelbarrow, which had a trunk in it, to the outhouse. Appellant then removed the boards of the floor of the outhouse, and his wife saw him dump something out of the trunk into this toilet. Later the same day, she saw her husband, appellant, haul dirt in the wheelbarrow and put it in the toilet. The next month, April, appellant moved the outhouse back to the south side of the path to its former location, and constructed a granary, the southwest corner of which was over the spot where the vault was located, and over which the outhouse had stood. The granary was fifteen feet wide and thirty feet long, constructed on a foundation of cement concrete walls. The floor of the granary was cement concrete. February 9 and 10, 1924, after appellant had been arrested, and while he was lodged in jail, the sheriff of Marshall county, armed with a search warrant, and at the request of appellant's wife, went to appellant's farm and excavated under the southwest corner of the granary, at the spot where the outhouse had stood. At the depth of five feet, a human body was found. Several physicians and the coroner examined the body and found it to be that of a woman. The top of the skull was gone, and the body had a hole in the back on the right side which continued into the lung. In the lung cavity, and the skull cavity, shot were found. The body had remnants of clothing and shoes on it. The shoes were lady's button shoes. The pattern and quality of the cloth of the waist and other clothing were discernible. The waist was caught at the neck with a breast pin. The clothing and breast pin were identified as those which were owned by Mrs. Frances C. Sweet, and which she wore March 2, 1922, the day she was last seen alive. Mrs. Sweet, March 2, 1922, owned some cash and three United States Liberty Bonds, each of the face value of five hundred dollars, which were payable to bearer. The physicians, after testifying concerning the condition of the dead body, testified that it was the body of a female human being, and that she came to her death from the result of wounds caused by being shot with a shotgun. Appellant testified in his own behalf. He testified that the same day in March, 1922, that his wife went to Culver in the afternoon to visit her sister, he spent the morning until ten o'clock doing chores at the barn, and then went from the barn to the mail box, which was down the public highway, to deposit some mail. He then returned to the house, and upon entering, smelled powder, and saw a "smokish ring" coming from the kitchen between the curtains into the front room. As he was passing through the curtains into the kitchen, he stepped on a shotgun, and there in the kitchen on the floor saw his grandmother, Frances C. Sweet, lying dead, with that part of her head above the eyebrows shot away. When he went to the barn that morning, his wife and grandmother were the only persons in the house to his knowledge. Testimony by another witness on behalf of the state was that appellant, in a conversation with the witness after March 2, 1922, said that his grandmother had gone east and died, and that he had been gone a week to the funeral.
The accusation was by indictment that appellant, "on or about the 27th day of February, in the year 1922, at said county of Marshall, in the State of Indiana, unlawfully feloniously, and purposely, and with premeditated malice, did kill and murder one Frances C. Sweet, by then and there unlawfully, feloniously, purposely, and with premeditated malice shooting at and against the said Frances C. Sweet, with a certain deadly weapon called a shotgun, then and...
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