I agree with the per curiam opinion that there was no error in overruling the motion to quash the first *Page 200 count and reach this conclusion by construing the first part of the first count down to and including the allegations respecting the taking of poison as charging a killing in an attempted rape. The first count contains three more or less distinct sets of allegations, each setting out a species of wrongful conduct. One set centers around the actual rape, or attempted rape; the second includes the facts of the procuring and taking of the poison, and the third relates to the withholding of aid after the poison had been taken. But since the first count closes with the allegation that Madge Oberholtzer died "from the effects of her wounds inflicted as aforesaid and said poison taken as aforesaid" it may be construed to charge that the defendants caused the death of Madge Oberholtzer by reason of wounds inflicted during the perpetration of the attempted rape and by reason of poison taken as a result of the attempted rape. I also agree with the percuriam opinion in construing "distracted with the pain and shame so inflicted upon her" to be equivalent to saying that the victim of the assault was in a state of mental irresponsibility when she procured and took the poison. As I shall later point out I do not think that the trial was conducted on the theory that these words imported the fact of mental irresponsibility; but as against a motion to quash they should be so construed. (See 18 C.J. 1289; Webster's New International Dictionary under "distraction;" see also §§ 3424 and 900, cl. 3, Burns Ann. Ind. St., 1926, and in connection therewith, Goodwin v. State (1884), 96 Ind. 550, especially on Petition for Rehearing; Sage v. State (1883),91 Ind. 141, 145). But this construction of Count 1, which enables us to say that there was no error in overruling the motion to quash, eliminates from the charge of murder in an attempt to rape all of those allegations respecting the withholding of aid and forces the conclusion that the trial court erred in overruling *Page 201 the motion to strike out that portion of Count 1 which contained these allegations of failure to furnish aid during the return trip to, and after arriving in Indianapolis. For despite the State's insistence that "the whole trip from Indianapolis to Hammond and return forms a part of the res gestae relating to attempted rape" we cannot ignore the plain fact that there was no attempt to commit rape after the parties registered at the hotel at Hammond. The allegations respecting the taking of poison are properly included in the first count charging murder in an attempted rape on the assumption that the count charges that the actual attempt to rape caused the taking of the poison; but since the alleged acts of failure to provide aid were not a part of the attempted rape, or causally connected therewith, their inclusion in the first count cannot be justified by calling them "a part of the res gestae of attempted rape."
We understand the per curiam opinion to hold that these allegations should have been stricken out as surplusage, but that the refusal to strike out was harmless error. The case ofTorphy v. State (1918), 187 Ind. 73, 118 N.E. 355, is authority for the rule that a motion to strike out is the correct procedure to remove improper matter from an indictment when the presence of the improper matter does not constitute one of the statutory grounds for a motion to quash; and in that case this Court held that the trial court committed reversible error in overruling a motion to strike out of the indictment certain prejudicial allegations. We agree with the analysis of Torphy v. State, supra, contained in the per curiam opinion, but do not accept the reasoning by which the opinion reaches the conclusion that the force and authority of that case is limited to the error in overruling a motion to strike out allegations from an indictment only when these allegations serve the purpose *Page 202 of "conveying facts to the jury that could not be properly presented in evidence from the witness stand." (Per curiam opinion, supra, p. 194.)
That particular danger did not exist in the instant case since, as the majority opinion points out, the objectionable allegations in the first count were all included in the fourth count, and any evidence which might have been admitted to support the allegations in the first count was clearly admissible under the fourth count. In fact most, if not all, of the facts alleged in the first count relating to failure to furnish aid were competent evidence under the res gestae rule of evidence. But the defendant's interests were seriously prejudiced because the retention of the allegations in question must have confused and misled members of the jury as to the scope of Count 1, and as to the proper application of that part of the evidence which supported the allegations. Indeed, when we consider Instructions 46 to 50, it seems inevitable that the jury understood that the objectionable allegations in themselves constituted and charged a separate and distinct offense of felonious homicide under Count 1. The substance of these instructions, as applied to the evidence in the case is fully and clearly indicated by Instruction No. 48 which is as follows:
"If you are convinced by the evidence beyond a reasonable doubt that these defendants or any of them voluntarily took Madge Oberholtzer into their custody while she was in a weak, sick or helpless condition from any cause whatsoever, and continued to exercise such control and custody over her, and that while they were so exercising such control and custody over her, she became violently ill from any cause whatsoever, then I instruct you that it was their duty under the law to care for her without wicked negligence, to supply her with care and medical attention if necessary within their means and to render her whatever assistance the evidence in this case shows beyond a reasonable doubt to *Page 203 have been necessary to the preservation or the prolongation of her life and if you believe from all the evidence in this case that they did so take her into custody, and that she did become violently ill for any reason whatsoever, and if you further find that they failed and refused to render her such medical attention and assistance within their means, and if you further find that she afterward died as a result of such failure to render her such medical assistance, or her life was shortened by the failure on the part of these defendants or any of them so to act, then I instruct you that they are guilty of manslaughter if you find said omission to act was mere negligence, but if you find that such omission or failure to act was done willfully, with a reckless disregard of the consequences, then I instruct you that they would be guilty of murder."
The State insists that Instructions 46, 47 and 48 were "clearly confined to Count 4, which was the only one on the theory of willful murder by reason of failure of appellant to perform the legal duty of affording care and medical relief after the poison was taken;" although "the State agrees with appellant that Instruction No. 47 given by the Court, is not applicable to Count 1 under which alone the appellant was found guilty." (Appellee's Brief, p. 153.) If these instructions were "clearly confined" to Count 4 it must be presumed that the jury so understood, and, consequently, any intrinsic defects in the instructions were rendered harmless by the failure of the jury to convict on Count 4. But it appears to the writer that these instructions clearly were not confined to Count 4. In none of the Instructions 46 to 50, inclusive, is there any statement expressly limiting the instruction to Count 4; and the phraseology and content suggest equally the objectionable allegations in Count 1 and the allegations in Count 4; and when we consider Instructions 49 and 50 it is clear that the trial court intended that the jury should apply these instructions to Count 1. To get the full force of these two *Page 204 instructions it is necessary to consider that the evidence did not clearly show to what extent Klinck, one of the defendants, participated in the criminal transaction, and especially that part of the affair which involved the trip to Hammond and the criminal assault. In Instruction 49 the court correctly charged the jury respecting Klinck's responsibility for acts of his codefendants committed outside his presence and in Instruction 50 makes the following statement:
". . . unless you are convinced beyond a reasonable doubt that said Klinck was a party to, or participated in a plan of said other two defendants or either of them to entrap and to make a criminal assault upon the person of Madge Oberholtzer, as alleged in the indictment, with knowledge of the purpose of said plan, he could not be liable for the acts of said other two defendants or either of them, outside his presence, and during said trip to Hammond, if you find such trip was made; . . .; and although he might not have been a party to such a plan, as alleged, and hence not liable for the acts of said other defendants, while on said trip, if such trip was made, yet if you are convinced by the evidence beyond a reasonable doubt that subsequently said Madge Oberholtzer was returned to the garage of the defendant Stephenson, in a weakened and helpless condition, in which condition she was placed into the custody and control of said Klinck in said garage which he assumed and undertook to perform, then I instruct you that at that time there was a legal duty resting upon him to use all reasonable means within his power to care for her, and if he failed to do so, either by an act of commission or an act of omission, by reason of which her life was shortened he would be guilty of felonious homicide under the first or fourth count of the indictment." (Our italics.)
In the foregoing the trial court told the jury that Klinck might be convicted of felonious homicide under the first count even though the jury should find that he was not responsible for any of the acts of his codefendants *Page 205 prior to the trip back to Indianapolis, provided only the jury should find that he was criminally responsible for withholding aid and that such withholding of aid shortened the life of Madge Oberholtzer; and we must necessarily conclude that the trial court and the jury understood that the allegations in the first count covering the failure of defendants to supply aid constituted either a charge of felonious homicide as a substantive offense, separate from and independent of the charge of murder in the attempted rape, or an essential element in the offense of murder in the attempted rape, to the same purpose and effect as the wounding and the taking of the poison. If the former was the jury's understanding then the appellant Stephenson was in fact, no matter what this Court's theory of the scope and construction of Count 1 may be, tried and convicted on a count charging two distinct and separate substantive offenses, on one of which he could be convicted of murder without any allegation or proof of purpose to kill and on the other of which the degree of homicide might range from involuntary manslaughter to first degree murder. If the latter was the jury's understanding, the appellant was convicted under a count which permitted the jury to find him guilty of murder in the attempted perpetration of a rape, in case the jury should find that he was guilty of an attempted rape and also found that he accelerated or caused the death of his victim by negligently failing or refusing to supply aid; and he could be convicted thus, without the necessity of the jury's finding that the appellant was legally responsible for the taking of the poison or to what extent, if any, the wounds contributed to the death of the victim. The injury to the appellant is obvious. The evidence showed only three possible causes of death, the wound on the breast, the poison and the withholding of aid. The evidence connecting the wound with the death *Page 206 is, at the best, strikingly weak and unsatisfactory. The jury reasonably might have found that it was not a factor. Both theper curiam and the individual opinions agree that in order for the appellant to be legally responsible for the taking of the poison by his victim it was necessary that the jury find that the natural and probable consequence of appellant's mistreatment of Madge Oberholtzer was to render her mentally irresponsible, and also find that while thus mentally irresponsible and as a result thereof she procured and swallowed the poison. Under the foregoing test the jury reasonably could have concluded that Stephenson was not legally responsible for Madge Oberholtzer's act of taking the poison. Further, both the per curiam and the individual opinions agree that the alleged acts of Stephenson in refusing or withholding aid cannot be considered a part of the offense of murder in attempted rape. In view of the foregoing it is clear that the defendant was entitled to have the jury understand that he could not be convicted on the charge of murder in an attempted rape unless the jury should find: (1) That the wound, with the resulting infection, caused death, or (2) that the defendant was legally responsible for the taking of the poison, and that death was caused by the poison, or (3) that the defendant was legally responsible for the taking of the poison and that the death resulted from the concurring effects of the wound and the poison. The defendant was entitled, also, to have the jury understand that the allegations respecting withholding of aid, insofar as they charged a public offense, charged the offense of homicide in the commission of an unlawful act, and that the defendant might be convicted on this charge only under Count 4, and could be convicted of murder on this charge only in case the jury should find that the unlawful act (i.e., failing or refusing to afford aid) was committed for the purpose *Page 207 of causing the death of Madge Oberholtzer. Further, it was of vital importance to the defendant's legitimate defense that the jury clearly understand that the unlawful act of refusing aid could not be substituted, as a cause of death, for either the wounding or taking of poison, in order to make out the offense of murder in attempted rape as charged in the first count. I do not mean to say that evidence of the failure to supply aid could not be introduced to show the efficacy of either the poison or the infection from the wound in causing death. But I do mean to say that if the jury concluded that the infection from the wound on the breast was not an appreciable factor in causing death, and if the jury also concluded that the defendant was not legally responsible for the taking of the poison, both of which conclusions would not have been unreasonable, then the jury could not have found the defendant guilty of murder in an attempted rape, even though we assume that the jury was convinced beyond a reasonable doubt that the defendant was under a legal duty to furnish care and medical aid to Madge Oberholtzer and that by reason of his failure or refusal to do so accelerated or caused her death. Under the last assumption the defendant was undoubtedly guilty of felonious homicide under Count 4, but the degree of homicide had to depend upon the mental state of the defendant in fact; and could not be supplied by, or presumed from the fact of the attempted rape.
I am convinced that the retention in the first count of the objectionable allegations and the effect given them, as indicated by Instructions 46 to 50, misled the jury as to the scope of the first count, as construed and limited by both the per curiam and individual opinions, and consequently substantially prejudiced the interests of the defendant.
I think the trial court committed further reversible *Page 208 error in the giving of Instruction No. 41. This instruction is as follows:
"The law presumes that one intends the natural and probable consequences of his acts, whether he actually intended or anticipated them or not. Of course such presumption can not be indulged in and carried to the extent of making one guilty of homicide on account of voluntary suicide of a sane person where such suicide may have been induced or caused from remorse, grief, shame or humiliation growing out of some past action of himself or herself and another to which he or she had assented voluntarily. But if in such case, there be no voluntary assent on the part of such person taking his or her life, to such past action which caused such remorse, grief, shame and humiliation but that he or she was compelled to participate in such action causing such remorse, grief, shame or humiliation through force, threats, coercion and restraint of another. Then it is for the jury to determine whether or not the suicide in such a case, after considering all the evidence relating thereto, is the natural and probable consequence of the acts of such person. If it is the natural and probable consequence of such act or acts, it is felonious homicide, otherwise it is not felonious homicide."
Instruction 41 undoubtedly referred to, and was understood by the jury to refer to, that particular part of Count 1 which alleged the facts respecting the taking of poison by Madge Oberholtzer, since that part alone involves the question of suicide.
This instruction must be considered in the light of the holding of both the per curiam and individual opinions, that the defendant was not legally responsible for Madge Oberholtzer's act of procuring and swallowing the poison unless the poison was procured and swallowed by her while in a state of mental irresponsibility induced by the wrongful acts of the defendant, and the natural and probable result thereof. (See per curiam,supra, p. 141.) And I believe that Instruction 41 violates the foregoing by omitting the element of mental *Page 209 irresponsibility and by making the responsibility of the defendant for the act of self-destruction depend on the simple test of whether, according to the standard of the jury, her act was the natural and probable consequence of the misconduct of the defendant. I appreciate that the per curiam opinion, while recognizing the necessity of the element of mental irresponsibility, construes the instruction to mean that if the jury found "that the suicide was the natural and probable result of the acts of appellant they necessarily had to find that the acts of appellant resulted first in rendering the deceased distracted and mentally irresponsible; for the willful and deliberate destruction of one's own life is not the natural and probable action of one who is in sound mind." But as I construe Instruction 41 it told the jury that it could find "that the suicide in such a case" was the "natural and probable consequence of the acts of such person" even if the one committing suicide was of sound mind. I agree with the per curiam statement that a deliberate and willful taking of one's own life is not a natural and probable act of one of sound mind; and consequently it follows that a wrongdoer is not required by law to anticipate such an act, by one of sound mind, as a legal consequence of the acts of the wrongdoer. But we cannot assume that one of sound mind will not commit suicide, and then, by process of reasoning backward, conclude that one who commits suicide is not of sound mind. The fatal defect in Instruction 41, as I interpret it, is that the jury could find the appellant legally responsible for the deceased's act of procuring and taking poison without definitely determining: (1) Whether the victim was in fact rendered mentally irresponsible by the act of the appellant; (2) whether this condition was the natural and probable consequence of appellant's acts; and (3) whether the act of self-destruction was the natural and probable *Page 210 consequence of the mental derangement. The last-mentioned element has a special significance in this case, since it would seem necessary that there be some reasonable relation between the act of the mentally irresponsible person and the particular type of mental irresponsibility.
In Instruction 6, tendered by appellant, the court defines suicide thus:
"Suicide is taking one's own life while possessed of sound mind." (Our italics.)
Instruction 41 first carefully stated that a person cannot be held to anticipate as a consequence of his acts, a "voluntary suicide of a sane person where such suicide may have been induced or caused from remorse, grief, shame or humiliation growing out of some past action of himself or herself and another to which he or she had assented voluntarily." (Our italics.) The court then states the conditions under which it is "for the jury to determine whether or not the suicide in such a case, after considering all the circumstances relating thereto, is the natural and probable consequence of the acts of such other person." It is clear from this statement of conditions that the criminal responsibility is made to depend upon the question whether the victim of self-destruction was a willing or unwilling participant in the "past action causing such remorse, grief," etc. There is no suggestion that the mental irresponsibility of the victim is a factor "in such a case" and we think it impossible to construe the instruction to require the jury to find that the defendant should have anticipated, as the natural and probable result of his conduct that Madge Oberholtzer would be rendered mentally irresponsible; and to further find that she was rendered mentally irresponsible, and as a consequence of her mental irresponsibility committed suicide. The fact of forced participation would, of course, be important evidence *Page 211 in gauging the mental and emotional reaction of the victim for the purpose of determining whether she was in fact rendered mentally irresponsible, but such fact should not be made the basis of a rule of law which creates a class of cases in which criminal responsibility is determined by the varying and undefined standards of juries as to when a "suicide of a sane person" is the natural and probable consequence of the acts of another.
Instruction 42 sets out in detail the facts to be considered by the jury in determining whether the deceased was a "willing or unwilling participant on the trip in question . . ." and obviously the instruction was given to supplement Instruction 41 and to help the jury determine the specific question of whether there was "voluntary assent . . . to such past action which caused such remorse, grief," etc. When we consider Instructions 41 and 42 together we are the more firmly convinced that the plain and natural meaning is that the jury should first determine whether the deceased was a voluntary participant in the acts which caused the shame and humiliation; and if it was found that she was not a voluntary participant then it was for the jury simply to determine, on the basis of its own standard, "whether or not the suicide in such a case, after considering all the evidence relating thereto, is the natural and probable consequence of the acts of such other person."
That the trial court did not consider mental irresponsibility a necessary factor in determining the responsibility of the defendant for the procuring and taking of the poison is indicated by the remarks of the judge, before the jury, when overruling an objection to the introduction of an alleged dying declaration. These remarks are set out in full in the opinion of Martin, J., in connection with his discussion of their prejudicial effect upon the jury and I shall not repeat them here. *Page 212 Since I agree with Martin, J., that their prejudicial character was in itself sufficient to constitute reversible error, I shall call attention merely to their significance in connection with Instruction 41. Nowhere in the trial court's comments is there any suggestion of the necessity of the element of mental irresponsibility in order to transform the "suicide" into homicide. The tenor of the remarks is indicated by the following: "The question is, must these men anticipate this suicide (our italics) as a reasonable result of their acts?" or by ". . .; then I must anticipate this woman is liable to kill herself, and if that is the natural consequence of the act that I have done, then it is for the jury to determine, and if it considered it a natural consequence, then this evidence is admissible."
The trial court's refusal to give Instruction 116 tendered by appellant is understandable only on the assumption that soundness or unsoundness of mind was not the determining factor in fixing the responsibility of the appellant for the act of self-destruction of Madge Oberholtzer. The tendered instruction is as follows:
"The law presumes that one intends the natural consequences of his acts. I instruct you, however, that such presumption cannot be indulged in and carried to the extent of making an accused guilty of homicide, on account of the voluntary suicide of a sane person, even where such suicide may have been induced or caused from remorse, grief, shame or humiliation growing out of some past action of the accused on or against the deceased."
We think the above instruction was clearly proper and should have been given, under the theory, which is accepted by both the percuriam and individual opinions, that the appellant was not legally responsible for the deceased's act of procuring and taking poison, if at the time of such act she was of sound mind.
We, of course, recognize that if one is not free to *Page 213 refrain even from an act of self-destruction by reason of present physical or mental coercion by another, or by reason of a state of mental irresponsibility induced by present or past acts of another, that an act of self-destruction may be, in fact and in law, the act of the one exercising the physical or mental coercion or causing the state of mental irresponsibility. But it is equally true that one cannot be criminally responsible for the voluntary self-determined act of another, who at the time of doing the act is in a position to act or refuse to act. The law does not give the victim of criminal misconduct the power to transform, by his own deliberate act, this criminal misconduct into a more serious criminal offense. So in this case, no matter how reprehensible the conduct of the defendant was prior to the moment the deceased took the poison, he was not a murderer, and the unfortunate victim of his misconduct could not by deliberately choosing to destroy her own life make him a murderer.
Evidence on mental irresponsibility.
I think there was some evidence to support a finding that Madge Oberholtzer was mentally irresponsible when she procured and swallowed the poison. There were facts and statements which, standing alone, would indicate a clear-minded and reasoned act of self-destruction, attended by a complete comprehension of the moral and physical consequences of her act and a sufficient mental power and control to make a choice. But we cannot ignore the terrific array of facts relating to the bestial mistreatment of the deceased, nor can we safely estimate the precise effect on the mind of the victim of her terrible experience. The irresistible impulse test of insanity, as recognized in Indiana, increases, I think, the danger of saying there was no evidence to support a finding of mental irresponsibility *Page 214 amounting to insanity, and if that question had been presented to the jury under proper instructions I could agree with the percuriam opinion in holding that such finding was supported by the evidence.
THE WOUND ON THE BREAST AS A CAUSE OF DEATH.
There is sufficient evidence to establish that the appellant caused a laceration of the deceased's breast while engaged in the attempt to commit the rape; and the evidence also establishes that this wound became infected. The post-mortem examination disclosed an abcess in one lung and at least one expert testified that in his opinion "the infection found in the lungs came from the infected area, recently healed, in the skin on the chest." Dr. Warvel, expert witness for the State, testified as follows: "I would not say certain that because there was an abrasion on one of the breasts and an abcess in one of the lungs that it would necessarily follow that one communicated germs to the other unless I could prove there was no other avenue of infection." The evidence showed conclusively that Madge Oberholtzer had suffered an attack of flu a short time before her death and the evidence of experts established that one of the common after effects of flu is an abcessed condition of the lungs. In view of all the evidence on this point I feel that the conclusion that the abcessed condition of the lung was caused by the infected abrasion on the skin must be as nearly a purely speculative inference as any conclusion can be and yet be entitled to the name of expert opinion. But granting that it was admissible, and it evidently was, I do not feel free to say there was no evidence to show that the abcess in the lung was the result of the infected abrasion on the breast. But there still remains the problem of deciding whether the infection in the lung can be held to have been a proximate cause of the death *Page 215 or whether, at the most, it merely created a condition which might or might not have added to the efficacy of the poison. I agree with the conclusion of Martin, J., that "from the viewpoint of a court in determining the guilt or innocence of one charged with murder by infliction of a bite, (which was not in itself a dangerous wound) such bite and the infection resulting therefrom could not be "superimposed" upon the dangerous condition arising from poison which was afterwards taken, so as to make the bite and not the poison the proximate cause of death." (See opinion of Martin, J., p. 217, and preceding discussion.)
Jurisdiction of the Hamilton Circuit Court.
I concur with the per curiam opinion in holding that the Hamilton Circuit Court acquired jurisdiction of the subject-matter of this cause despite the fact that upon change of venue from the Criminal Court of Marion County to the Hamilton Circuit Court the copy of the orders and proceedings had in the cause while pending in the Criminal Court of Marion County was not authenticated by the signature of the clerk of that court.
Admissibility of dying declarations.
As respects the admissibility of the two dying declarations, one written and the other oral, I think both the per curiam opinion and the opinion of Martin, J., conclusively show that the written declaration was properly admitted. There is some room for doubt about the admissibility of the oral declaration, the content of which was testified to by Dr. Kingsbury. At the time of the statements which constitute this declaration were made to Dr. Kingsbury the deceased also made some remarks which indicated she was not anticipating immediate death; and death did not ensue for some time after the declaration was made. But inasmuch as the evidence shows that poison had been taken by the declarant *Page 216 for the purpose of causing her death, and since various remarks by her indicated that she firmly believed that she would eventually die as a result of her condition, and since she did in fact die as a result of such condition, I think that the requirement that such declarations be made with a definite and firm conviction of impending death was satisfied. It is true, that at the time the declaration was offered in evidence the proper foundation had not been laid for its introduction; but since all the proof necessary for such foundation was later offered and admitted I feel that the technical error in admitting the dying declaration without this proof first having been offered was harmless, and especially so, in view of the fact that the substance of the oral declaration was included in the written declaration which was admitted after the proper foundation had been laid.
The reasons which I have given in support of my conclusion that the trial court committed prejudicial error in overruling the motion to strike out and in giving Instruction 41 are not intended to imply that the trial judge was either confused or inconsistent in his rulings. His construction of Count 1 and his rulings and instructions based thereon were consistent. Yet it is evident that the trial court's construction of Count 1, as understood by the writer, would, if accepted by this Court, make Count 1 bad as against a motion to quash on the ground of uncertainty. But the vital consideration is that the trial court's theory of the first count, and not this Court's theory, was actually applied during the trial and determined the character of his rulings and instructions; and if the writer is correct in his interpretation of the trial court's theory and has properly estimated the effect of such theory on the conduct of the trial it is clear that the appellant was deprived of substantial *Page 217 rights to which he was entitled under both the per curiam and individual opinions.
Since I believe the defendant's legitimate interests were prejudiced by the trial court's theory of Count 1, and the rulings and instructions based thereon, I conclude that the judgment should be reversed and a new trial granted.