Williams v. State
| Decision Date | 03 April 1925 |
| Docket Number | 24,489 |
| Parties | Williams v. State of Indiana |
| Court | Indiana Supreme Court |
1. HOMICIDE.---Competency of dying declarations is for the trial court.---The competency of a statement purporting to be a dying declaration is for the trial court to be determined by proof relative to declarant's state of mind at the time whether uttered under a sense of impending death without hope of recovery. p. 88.
2. HOMICIDE.---Competency of dying declarations may be determined from surrounding circumstances.---The competency of a statement as a dying declaration to be determined by the judge of the trial court is not limited to proof of declarant's statements alone, but may be inferred from his conduct, manner, symptoms and condition, which naturally result from the extent and character of his wound or illness p. 88.
3 HOMICIDE.---Dying declarations held to have been made at time of signature, though some time after writing.---A statement was made by one on the afternoon of his death at about three o'clock, when in the sense of impending death, which was reduced to writing, and read to him and was then left in the possession of his nurse; at about six-thirty he called for it saying he knew he was going to die and wanted to sign it looked at it and apparently identified it, and signed it in the presence of witnesses; held, that the declaration will be treated as having been made, or at least confirmed, at the time he signed it. p. 89.
4. HOMICIDE.---The nature of a wound indicating malice warrants an instruction on malice.---Evidence as to the nature of a wound inflicted, which indicated the use of a dangerous and deadly weapon, without justification or provocation, justifies an inference of malice and warrants an instruction as to the inference of malice to be drawn from the intentional use of a deadly weapon. p. 89.
5. HOMICIDE.---Character of weapon question for jury.---The question whether an instrument used is a deadly weapon is for the jury and will not be considered on appeal to determine the correctness of an instruction concerning malice. p. 92.
6. HOMICIDE.---Instruction does not invade province of jury when supported by conflicting evidence.---Upon conflicting evidence as to the opening move in a personal encounter resulting in death of one, an instruction held not to invade the province of the jury in assuming that the other was guilty of a fatal assault. p. 92.
7. HOMICIDE.---Instructions which submit question of provocation upon facts and circumstances surrounding the case, are not objectionable.---Instructions which submit to the jury the question of provocation upon all the facts and circumstances surrounding the case, to determine the grade of the homicide under 2416 Burns 1926, 2239 Burns 1914 are not erroneous or open to the objection that they do not conform to the evidence. p. 93.
8. CRIMINAL LAW.---Burden to show harmfulness of instructions is upon objector.---If an instruction is erroneous and harmful to appellant, the burden is upon him to show that it was. p. 93.
9. HOMICIDE.---Instructions on question of intent properly refused if already covered.---An instruction on motive of defendant, tendered by him, which was involved and did not bring to the attention of the jury principles of law bearing on malice or the effect of motive not already covered, is properly refused. p. 94.
10. HOMICIDE.---Evidence held sufficient to sustain verdict.---Evidence considered and held sufficient to sustain a conviction of murder in the second degree. p. 94.
From Vanderburgh Circuit Court; Philip C. Gould, Judge.
Marvin Williams was convicted of murder in the second degree, and he appeals.
Affirmed.
Lindsey & Lindsey, for appellant.
U. S. Lesh, Attorney-General, Mrs. Edward Franklin White, Deputy Attorney-General, and O. S. Boling, for the State.
Appellant was indicted, tried and convicted in the Vanderburgh Circuit Court of murder in the second degree. Judgment in accordance with the verdict. § 2415 Burns 1926, § 2238 Burns 1914. Appellant's motion for a new trial, the overruling of which is the only error assigned, questioned the action of the court in admitting in evidence the purported dying declarations of the deceased; the giving of instructions Nos. 5, 7, and 12 upon the court's own motion, and the refusal to give instruction No. 7 tendered by appellant; insufficient evidence to sustain the verdict; and verdict contrary to law.
In substance, the evidence in part shows that on September 27, 1922, at about seven o'clock p. m., Walter Walker was riding a bicycle on one of the streets of Evansville when the appellant accosted him saying: "Wait a minute, I want to see you." Walker stopped. Appellant, while advancing toward Walker, said: "I understand you have been talking about me and my girl," but as to what was said after appellant came up to Walker, or which one started the physical encounter, there is a conflict in the evidence. However, only a few seconds of time elapsed until the combat commenced. Both fell to the ground, appellant on top of Walker, but while in the scuffle, both arose to their feet, each having hold of the other, when they were separated by a third party. After the separation Walker sat down upon nearby steps leading from the sidewalk into a dwelling house, and appellant went into an adjoining home where his fiancee resided with her parents. Appellant, who was twenty-seven years old, was the only person in a position to do Walker bodily injury. Walker immediately began to complain of misery in his stomach. He was later assisted to his home a short distance away. A doctor was called who, about eight o'clock, made an examination of Walker's person and found a wound very close to his navel made by a knife or some sharp instrument, and on inserting a probe found that it had extended into the abdomen. Walker was suffering intensely and the doctor ordered him removed to a hospital where, at about 9:30 p.m., a surgical operation disclosed that his stomach had been punctured and the food was escaping therefrom. The surgery completed, he remained in the hospital and gradually grew weaker and died the next evening between eight and nine o'clock from peritonitis due to the effects of the wound.
Between two and three o'clock in the afternoon of the day Walker died, the deputy prosecuting attorney of Vanderburgh county called on him at the hospital, when and where Walker made the following statement:
This statement was made to, reduced to writing, and then read to the deceased by the deputy prosecuting attorney in the presence of the nurse in charge of him at the hospital. It was not signed until about 6:30 that evening. From the time of making the statement until he requested that it be returned to him for signature, it was continuously in the possession of this same nurse who testified that he called for it, saying: "'I can't get well and I want to sign that statement that I had written out this afternoon because,' he said, 'I am going to die and I want to sign it,' and I said, 'Here it is,' and he looked at it and I gave him a drink of water and moistened his tongue and he signed it and said 'Thats all.'" The matron of the hospital was present at the time the statement was signed, whose testimony fully corroborated the testimony of the nurse. This witness also testified that when the statement or paper was handed to the deceased he took it, looked at it, examined it and apparently identified it as the same paper he had seen. The nurse then supported him and he signed it. "I felt that he knew just what was on the paper," but didn't think he was able to read it. He was cold and clammy, suffering a great deal and, in appearance, he was approaching death.
The foregoing written statement of the deceased was admitted in evidence over appellant's objection "that at the time the statement was made the deceased did not at that time believe he was going to die and had not given up all hope of recovery"; that at the time he signed the statement it was not read to him nor did he read it himself.
The competency of this evidence was a question for the trial court to be determined by the proof relative to the declarant's state of mind at the time he made the declarations. The proof preceding the admission of such declarations must convince the trial judge that they were uttered under a sense of impending death without hope of recovery, or that the declarant fully believed that death was so near that all motives to falsehood were superseded by the strongest motive to strict veracity. Williams v. State (1907), 168 Ind. 87, 79 N.E. 1079; Gipe v. State (1905), 165 Ind. 433, 1 L. R. A. (N. S.) 419, 112 Am. St. 238, 75 N.E. 881; Watson v. State (1878), 63 Ind. 548; Morgan v. State (1869), 31 Ind. 193; Jones v. State (1880), 71 Ind. 66.
Proof of the fact thus to be settled by the judge is not...
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