Williams v. State
| Decision Date | 03 April 1925 |
| Docket Number | No. 24489.,24489. |
| Citation | 196 Ind. 84,147 N.E. 153 |
| Parties | WILLIAMS v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Vanderburgh County; Philip C. Gould, Judge.
Marvin Williams was convicted of murder in second degree, and he appeals. Affirmed.
Lindsey & Lindsey, of Evansville, for appellant.
U. S. Lesh, Atty. Gen., 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. Section 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 7 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 fiancée resided with her parents. Appellant, who was 27 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 8 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 8 and 9 o'clock from peritonitis due to the effects of the wound.
Between 2 and 3 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:
“I, Walter Walker, realizing that I am about to die, and having no hope of recovery, make the following statement in order that the authorities may know how this cutting of me by Marvin Williams occurred.
“Williams was with Ruth Worman in front of her house. I was taking my grandmother over to my aunts, and we passed Williams and Ruth Worman. I asked Worman's brothers when Williams was going to marry Ruth.
“Williams asked me to wait a minute. I told him all right, and I stopped. Williams jerked off his coat, pulled out his knife, and stabbed me in the stomach, and just about the same time I hit at him in the chin with my fist, but he had already stabbed me when I struck him. When I fell down I fell on my side, and he got on top of me and held me down. I was not angry at the time, and gave him no cause or reason for stabbing me. Walter Walker.
Louise Kratz Eiceman, Witness.”
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, ‘That's 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 did not 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.
[1] 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 motives to strict veracity. Williams v. State, 168 Ind. 87, 79 N. E. 1079;Gipe v. State, 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238;Watson v. State, 63 Ind. 548;Morgan v. State, 31 Ind. 193;Jones v. State, 71 Ind. 66.
Proof of the fact thus to be settled by the judge is not limited to the declarant's statements alone, “but it may be inferred from the general statements, conduct, manner, symptoms and condition of the declarant, which flow as the reasonable and natural results from the extent and character of his wound, or the state of his illness.” Williams v. State, supra, 168 Ind. 90, 79 N. E. 1079.
[2] In the instant case we are disposed to treat the written declarations of the deceased as having been made, or at least confirmed, at the time they were signed. Preliminary to their admission, the trial court was fully advised of all the circumstances tending to show the state of mind of the deceased at the time he signed the statement. True, the expressions were actually enunciated a few hours before they were signed, but it is clearly apparent from the evidence that he called for and had in hand his afternoon statement of the facts as they occurred the evening before. He looked at it, he examined it, and, although his life was rapidly fading away, he impressed those within his presence that he knew what he was affirming by his signature. He was continually growing weaker. As stated by the witness, “He was cold and clammy.” He said, “I know I am dying, and I want to sign that statement I made this afternoon.”
It would seem to us that the evidence before the court on the subject in question was amply sufficient to sustain a finding that the declarations of the deceased were made at the time when every motive of falsehood was silenced and the mind controlled by solemn considerations to speak the truth. The objections of appellant to the admission in evidence of the foregoing declarations of the deceased were properly overruled.
[3] Looking to the instructions given, of which complaint is made, Nos. 5 and 7 may be considered together. No. 5 purports to define the word “malice” as used in the statute defining “murder,” and No. 7 admonished the jury that it would not be authorized in finding the defendant guilty of either murder in the first or second degree upon convincing evidence alone that such killing was feloniously and purposely done. The evidence must go farther and show that it was done with malice on the part of the defendant toward the deceased. This instruction also stated under what circumstances malice may be inferred and when not. The first of these instructions was held to state the law correctly in the case of Davidson v. State, 135 Ind. 254, 263, 34 N. E. 972. See, also, Coghill v. State (1871) 37 Ind. 111;Welty v. State (1913) 180 Ind. 411, 429, 100 N. E. 73. The last sentence of instruction No. 7, and the part here questioned, was approvedin the case of McDermott v. State, 89 Ind. 187, and reads as follows:
“Where a...
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