Wilson v. State

• Decision Date: 11 January 1911
• Docket Number: 21,677
• Parties: Wilson v. The State of Indiana
• Court: Indiana Supreme Court

93 N.E. 609

175 Ind. 458

Wilson v. The State of Indiana

No. 21,677

Supreme Court of Indiana

January 11, 1911

Rehearing Denied April 18, 1911.

From Fayette Circuit Court; George L. Gray, Judge.

Prosecution by The State of Indiana against John Wilson. From a judgment of conviction, defendant appeals.

Affirmed.

C. S Roots and D. W. McKee, for appellant.

James Bingham, Attorney-General, F. M. Edwards, Prosecuting Attorney, A. G. Cavins, E. M. White and W. H. Thompson, for the State.

OPINION

Jordan, J.

Appellant was charged by an indictment returned by the grand jury of the Fayette Circuit Court with murder in the first degree. The crime is alleged to have been committed in Fayette county, Indiana, on March 3, 1909, the person murdered being the wife of the accused. On a trial by jury he was found guilty of murder in the second degree, as charged in the indictment, and, over his motion for a new trial, was sentenced by the court to imprisonment in the Indiana state prison during life. The record discloses that appellant has been tried three times: On the first trial the jury failed to agree; at the second, it found him guilty of murder in the first degree, but a new trial was awarded to him by the trial court, which resulted as hereinbefore stated.

The only error assigned is that the court erred in overruling appellant's motion for a new trial. The reasons assigned in the motion for a new trial--and discussed by his counsel in this appeal--are that the court erred in permitting the State to read in evidence exhibit nine, which was the stenographer's longhand report of the evidence of William Fenton, a witness in behalf of the State, as given by said witness on the second trial of this cause. The ruling of the court in permitting this evidence to go before the jury is assigned in various ways in the motion for a new trial. Finally it is assigned therein that the court erred in overruling the motion of defendant to strike out the evidence embraced in exhibit nine.

Other reasons assigned and relied on by appellant are (1) that the court erred in refusing to permit his counsel to answer a point made by the prosecuting attorney in closing the argument for the State, which was that a Mrs. Vance, a witness for defendant, was not worthy of credit, because she was of unsound mind, (2) insufficiency of the evidence to sustain the verdict, and (3) that the verdict is contrary to law.

The first alleged error discussed by appellant's counsel is based on the ruling of the trial court in permitting the State to introduce the evidence of William Fenton, as given at the second trial of this cause, at which trial, as it is shown, said Fenton was fully cross-examined by appellant. The objections urged by appellant in the trial court to the introduction of this testimony were predicated on the right guaranteed by section thirteen of the bill of rights as contained in the Constitution of this State (Article 1, § 13), which declares that "in all criminal prosecutions the accused shall have the right * * * to meet the witnesses face to face." The argument presented by counsel is that the evidence of this witness was not competent, in the absence of any showing that the witness was dead or insane. It is especially claimed that sufficient diligence has not been shown by the State in its efforts to secure the attendance of the witness at the trial. It is also urged that the evidence ought not to have been introduced unless the testimony of said Fenton, as given by him on the first trial, was introduced in connection with that given on the second trial. The record discloses that appellant unsuccessfully moved to strike out the evidence embraced in exhibit nine, being the evidence of the absent witness, unless the State should introduce the evidence of the same witness given on the first trial of the cause.

In respect to the foundation laid by the State, which it claimed entitled it to the admission of the evidence in question, the record discloses that the prosecuting attorney, and other officials, were unable to ascertain the whereabouts of said Fenton. It appears that upon the two previous trials this witness had been brought from Henry county, Indiana, to testify in behalf of the State. In this appeal, the trial below was had at the October term, 1909, of the Fayette Circuit Court, which commenced on October 4, 1909. On the first day of said term this cause was set for trial on October 18. Sometime before the trial the prosecuting attorney inquired of several persons where said Fenton could be found, and was informed that he was at New Castle, Henry county, Indiana. The prosecutor subsequently talked with other persons in regard to Fenton, and they informed him that they did not know where he was, unless he was at New Castle, Henry county. On the first day of the term the prosecuting attorney directed the clerk of the Fayette Circuit Court to issue a subpoena to the sheriff of Henry county to subpoena Fenton to be present at the trial.

The prosecuting attorney testified that as soon as this cause was set for trial at Connersville, Indiana, he directed the clerk to issue subpoenas for all of the State's witnesses. A subpoena for said Fenton was sent to the sheriff of Henry county, and he was requested to send Fenton, if found in that county, to Connersville, in order that he might be present at the trial. Search appears to have been made for this witness also in Wayne county, Indiana, and subpoenas issued for him to Henry county and other counties were returned by the respective sheriffs indorsed "Not found." The following evidence, in addition to that set out, was given by the State.

Witness Buckley testified as follows: "I am sixty-eight years old, and reside at Connersville, Indiana, where I have resided forty-two years. I am acquainted with William Fenton. He is fifty-five or sixty years old. I have known him twenty years. He is a stonemason, and has resided in Connersville fifteen to eighteen years, though he is occasionally away on business in other towns. It has been some weeks since I saw him, and I have no knowledge of his whereabouts. He has done work for me. I have not made any search or inquiry for him. I heard he went to work at New Castle, Henry county, Indiana."

William Fenton, Jr., testified as follows: "I live in Connersville, and have resided there for twenty-six years. I am the son of William Fenton. I do not know where he makes his home, nor where he is. Prior to the close of the former Wilson trial he made his home at Connersville for about twenty-six years. I have not seen him since that trial, and do not know where he went, but have heard he went to New Castle. I told the sheriff that I did not know where my father is. I am his only son. We did not live together. I have not been interested in him, as we are not on very good terms."

Anson B. Miller testified as follows: "I am sheriff of Fayette county. Wilson and Fenton conversed with each other frequently while in the jail. I have made efforts to find William Fenton since the beginning of this trial. We sent a subpoena, issued by the clerk, to New Castle, Indiana, where Fenton was on the former trial, and he could not be found. I was in communication with the sheriff up there on Tuesday or Wednesday of this week, and instructed him, if he could find Fenton to send him to Connersville. The sheriff had the subpoena, and promised to notify me by telephone if he found Fenton. He telephoned me that he had not seen anything of Fenton around there for three weeks, and that Fenton had left there. The sheriff said Fenton might be in Cambridge City or Richmond, and I went to both places night before last, and took with me the sheriff and deputy of Wayne county. We searched Richmond all over as near as we could. People who knew Fenton had not seen him. Fenton frequents saloons, and we inquired at different saloons and boarding houses, but were not able to find him. I inquired for Fenton of the police at Cambridge City on my way to Richmond, and went back there from Richmond and looked for him myself, and made inquiry, but could find no trace of him. The reason the New Castle sheriff thought Fenton might be at Cambridge City or Richmond, was that there was some railroad work going on around there. At Cambridge City I went to the contractor who had a list of names of his men. Fenton was not on the pay-roll, and the contractor knew nothing of him. My riding bailiff, Roe Sanders, went into different counties out from Connersville. I have made inquiry of several of Fenton's acquaintances since my return--of Duff Murphy and Will Michaels, and others whose names I do not know--and have been unable to get any trace of Fenton. I have not seen him since the former trial of this case. I did not inquire at Rushville. I did inquire in Brookville. I went there last week. I had a subpoena with me when I made these visits. The first subpoena for this trial came into my hands day before yesterday. The court asked me to find Fenton, if I could."

Anna Henry testified as follows: "I am the official stenographer for this court, and was such, and was sworn as court reporter to take the evidence, on both former trials of this case, and did so. I correctly took and transcribed into longhand the evidence of William Fenton on the second trial."

Upon the showing made by the State at this preliminary hearing, the trial court held that the testimony of William Fenton, the absent witness, given by him upon the former trial of this cause, at which time he was cross-examined by defendant, was competent, and permitted the State, over defendant's objection, to introduce it in evidence to the jury. The testimony in question was quite material for the State.

Counsel for appellant contend...