Charges contained in the several counts.
Count 3 of the indictment charged that appellant did:
"unlawfully and feloniously touch, beat, strike, bite and wound the body and person of the said Madge Oberholtzer with the unlawful and felonious intent then and there and thereby forcibly and against her will the said Madge Oberholtzer to ravish and carnally know, from which said assault and from which touching, biting, striking and wounding and as a result thereof the said Madge Oberholtzer did then and there sicken, languish and die," and "did unlawfully and feloniously in the manner and form and by the means aforesaid the said Madge Oberholtzer, kill and murder" . . .
Count 2 of the indictment charged that the appellant:
"did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder one Madge Oberholtzer by then and there unlawfully and purposely causing to be administered to the said Madge Oberholtzer by her own hand a certain deadly poison commonly called bichloride of mercury which the said Madge Oberholtzer acting under fear and duress and the compulsion of said David C. Stephenson, Earl Gentry and Earl Klink, did then and there swallow into her stomach and body by which she then and there thereby died."
Count 4 of the indictment charged that appellant:
"did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder one Madge Oberholtzer," and "being then and there able to provide such medical attention, services and assistance . . . did . . . unlawfully, feloniously and forcibly imprison, restrain and prevent *Page 218 the said Madge Oberholtzer from such medical assistance and services with the unlawful and felonious intent . . . to kill and murder the said Madge Oberholtzer."
The verdict of the jury finding the appellant guilty only on the first count of the indictment amounted to a finding in his favor on the foregoing three counts.
Count one of the indictment narrated at length the facts which the state proposed to prove, following in the main the statements contained in decedent's dying declaration. (The first nine pages of the seventeen-page statement of the facts proven at the trial set out in the prevailing opinion is identical with the written dying declaration of the deceased, Madge Oberholtzer, — except that its relation of those facts are in the third person, while her narration of them is in the first person.) Count one charged "that thereafter she the said Madge Oberholtzer did . . . die from the effects of her wounds inflicted as aforesaid and said poison taken aforesaid" and concluded that appellant "did, by the manner and means aforesaid, her, the said Madge Oberholtzer, unlawfully, feloniously and with premeditated malice, kill and murder." There is no charge in this count that the acts of appellant were purposely done, it being apparent, and the state conceding, that it is not a charge of wilful murder under that portion of § 347, ch. 169, Acts 1905, § 2412, Burns 1926, which provides that "Whoever, purposely and with premeditated malice . . . kills any human being is guilty of murder, . . ." but is a charge under that portion of the same section which provides that "whoever . . . in the perpetration of, or attempt to perpetrate, a rape . . . or by administering poison or causing the same to be administered, kills any human being is guilty of murder." *Page 219 The two theories relied upon to sustain the conviction.
The state in its brief, and in the oral argument which was held on April 30, 1928, sought to uphold the verdict of second degree murder and the judgment of the lower court imposing life imprisonment on two separate theories: first that a contributing cause of Miss Oberholtzer's death was an abcess in her lung resulting from an infection in a bite on her breast inflicted by appellant during the course of his assault upon her and second that the death was caused by the poison and that Stephenson was legally responsible for her having taken the poison. The prevailing "per curiam" opinion of the court apparently adopts the second theory, (but on the ground that the deceased was mentally irresponsible when she took the poison and that the acts of appellant were the cause of such mental irresponsibility). The per curiam opinion does not discuss the first theory, notwithstanding the sharp conflict between the parties with reference thereto and I assume that such theory is rejected by the court, in which action I concur. At the risk of extending this opinion beyond its proper limits I shall discuss both these theories, which are ably briefed by the parties, since the points decided in this novel case have a far-reaching effect on the criminal law as it relates to the crime of murder.1 Verdict of guilty based on infliction of a bite during the perpetration of a rape could be sustained if the bite caused death (1) directly or (2) indirectly through development of infection, uneffected by intervening human action.
The bite or wound on deceased's breast was inflicted during the perpetration, or attempt to perpetrate, a rape and if such wound caused the death directly, or if it caused the death indirectly, through a chain of natural effects and causes unchanged by human action, a verdict *Page 220 of guilty based thereon could be sustained. Hall v. State (1928), 199 Ind. 592, 159 N.E. 420; Kelly v. State (1876),53 Ind. 311. In other words, if an infection developed from the bite, which infection uneffected by any intervening human action caused decedent's death, then the bite can be considered, in law, the cause of death. In a note to Hall v. State, supra, a number of cases are collected in which this principle of law has been applied.
The state failed to prove that infection from the bite on deceased's breast was the cause of an abcess on her lung or infection in her kidneys. Even if infection from bite was the cause of such secondary infection, medical testimony that death was caused by infection "superimposed" upon poisoning must be considered in light of the fact the poison was taken subsequent to the infliction of the bite. The fact that deceased, by reason of the bite, may have been more susceptible to the fatal effects of the poison does not render the bite the proximate cause of death (unless the taking of the poison was the natural result of the bite).
Dr. Kingsbury, one of the principal witnesses for the state, testified that the lacerations on deceased's left breast became infected. He was asked, "Were they infected at the time of her death?" and answered, "No they had healed, there were scars there." He was asked the nature of the infection and replied, "Oh, the ordinary pus producer, ordinarily staphylococci, sometimes — it is nearly always responsible for pus infection." The trained nurse who attended deceased testified that she sterilized the abrasions and that they healed up. The evidence shows that the bite on deceased's breast was not a serious wound calculated to destroy or endanger life, nor was the infection resulting therefrom shown by the testimony of any witness to have been serious enough, of itself, to destroy life. *Page 221 It therefore can not be contended that death resulted directly from the bite, but it is contended by the state that such bite and infection is a responsible cause of death for the reason that deceased might have, or would have, recovered from the effects of the poison which she afterwards took, except for the existence of the infection from the bite. There is opinion evidence by physicians, called as expert witnesses for the state, that deceased might have, or would have, recovered from the mercurial poisoning had it not been for an infection which developed, and which may have resulted from the previously inflicted bite.
This opinion evidence must be considered in connection with the other medical evidence, not in conflict therewith, regarding the bite and the infection. The evidence of the state does not establish the fact that the abscess in the lung or the infection in the kidney discovered by a post-mortem examination was the result of infection from the bite on the breast. Dr. Warvel, witness for the state, testified: "I would not say certain that because there was an abrasion on one of the breasts and an abscess 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." It was undisputed that the deceased had recently suffered from the flu (influenza) from which such an abscess might have resulted.
Physicians as expert witnesses for the state testified that an infection could be carried from a surface wound to the lung by the blood stream; that such a process was known as septicemia or infection of the blood (blood poisoning) and results in the development of pyemia or localization of the infection; and that such a condition would be accompanied by a marked rise in the temperature of the patient and could be definitely established by a microscopic examination of the patient's blood. The *Page 222 detained record of deceased's temperature from March 17 to April 14, inclusive, as given by the nurse from her records shows a gradual and not a marked rise of temperature, and although it clearly appears that the patient's blood was tested and examined, there was no testimony that the blood ever showed a condition of septicemia caused by the staphylococci infection on the breast. It thus appears that while the state proved that an abscess on the lung might or could result from an infection resulting from a bite on the breast, it did not establish as a fact that the infection of this decedent's lung was carried by her blood stream from an infected breast, nor did the state prove in the language of its own expert that "there was no other avenue of infection."
Doctors Moon, McDonald and Mertz, as expert witnesses for the state, in answer to a hypothetical question approximately eight hundred words in length, propounded by the prosecuting attorney, testified that the cause of death in such a hypothetical case was: "toxic nephritis due to mercuric chloride ingestion with a terminal . . . superadded infection," — "an acute staphylococci infection superimposed upon an acute nephritis in the kidney," etc. Dr. Warvel, another of the state's experts, testified that in his opinion the cause of death in such hypothetical case was "some secondary complication" or infection, the nature of which he was unable to state, "superimposed upon nephritis." These expert witnesses on cross-examination stated that they had testified at a former hearing (on a petition by the defendant to be let to bail) that they then diagnosed the death of decedent to have been due to bichloride of mercury poisoning. Two of them there testified that the lacerations on the breast did not produce or were not the cause of death. One of them in reporting to the coroner the result of the autopsy stated that he found *Page 223 on the lung a "localized solitary superative pulmonary lesion, possibly tuberculous."
We have pointed out that the state did not prove that the staphylococci infection referred to resulted from the bite on decedent's breast. But even if the evidence of the state could be considered as establishing the fact that death resulted, not from the poison alone, but from the effect of an infection from the bite on the breast superimposed upon the nephritis caused by the poison, then such proof would necessarily have to be considered in connection with a consideration of the facts regarding the time of the infliction of the bite and the time of the taking of the poison, in order to determine the proximate cause of deceased's death. From the viewpoint of those medical experts of the state the infection may have been "superimposed" upon the nephritis, but 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 the death.
The fact that deceased, by reason of the bite and its resulting infection, may have been more susceptible to the fatal effects of the poison than she otherwise would have been, does not render the poison any the less the proximate cause of the death, 2 Brill Cyc. Cr. L. 1017, and does not render the bite, which was not a serious wound, the proximate cause of the death, unless the taking of the poison was the natural result of the wound. See discussion infra.
If the state had proved that infection in the lung and kidneys resulted from the bite on the breast and that appellant inflicted the bite after the deceased took the *Page 224 poison and an infection which resulted naturally from the bite then supervened or was superimposed upon the nephritis a different case would be presented for our consideration.
Where wound is not dangerous and death results from cause subsequently arising (not at the direction of the one inflicting the first wound) the supervening cause is the proximate cause of death.
Where a wound is inflicted by one person on another which is not in itself dangerous or necessarily fatal and death results, not from such wound directly nor from such wound indirectly "through a chain of natural effects and causes, unchanged by human action," but death results from some cause subsequently arising not at the direction or connivance of the one inflicting the first wound, and but for such subsequently arising cause death would not have resulted, the infliction of the first wound is not the proximate cause of death, but the supervening cause is the proximate cause and the one responsible for the death. Bush v. Com., supra; Livingston v. Com. (1857), 14 Grat. (Va.) 592; Peo. v. Elder (1894), 100 Mich. 155, 59 N.W. 237;Quinn v. State (1914), 106 Miss. 844, 64 So. 738; Treadwell v. State, supra; Walker v. State (1902), 116 Ga. 537, 42 S.E. 787, 67 L.R.A. 426; State v. Johnson (1893), 118 Mo. 491, 24 S.W. 229, 40 Am. St. Rep. 405; Notes, 16 Ann. Cas. 579; 8 A.L.R. 520.
"Contributing" cause of death, must constitute a proximate contribution to sustain criminal responsibility.
The state cites numerous cases as supporting its proposition that "when a cause for which one is responsible contributes to death, he is not relieved from criminal responsibility by reason of the fact that another or other causes for which he is not responsible also contributed *Page 225 to such death," and in 29 C.J. 1079 it is said: "If an injury caused by defendant contributed to the death, defendant is responsible although a subsequent mortal wound inflicted independently by another also contributed thereto." The use of the words "contributes" and "contributed" in the foregoing statements is apt to prove confusing unless a review is made of the cases upon which the statement is based, from which review it is seen that a proximate contribution is necessary to sustain criminal responsibility. In most of the cases cited the first wound was a mortal wound and in practically all of the cases the court held that the injury inflicted by the defendant who was found guilty was the proximate cause of the death. Of the six cases cited by Corpus Juris five were cases where men were killed in fights as the result of joint acts of two assailants.2 Unlawful act must be the proximate cause of death.
"To render a person responsible for the death of another . . . his unlawful act or omission must be the *Page 226 proximate cause of the death of the person killed." 2 Brill Cyc. Cr. L. 1013-1014. In Dunville v. State (1919), 188 Ind. 373, 123 N.E. 689, in an appeal from a conviction for manslaughter it was held that "it is always necessary that the evidence show that the unlawful act is the proximate cause of the death." The part of the manslaughter act (§ 2416, Burns 1926) under which that conviction was had provides that "Whoever unlawfully kills any human being without malice, express or implied . . . involuntarily, but in the commission of some unlawful act is guilty of manslaughter". . . . The part of the statute under this prosecution is based, § 2412, Burns 1926, has been quoted,supra, and it is likewise necessary to sustain a conviction under it that the evidence show that the act of the defendant, in the perpetration of or attempt to perpetrate the felony specified, is the proximate cause of the death. In the case at bar the evidence is not sufficient to show that the bite or the infection resulting therefrom was the proximate cause responsible for decedent's death, but it appears that bichloride of mercury poisoning was the supervening, proximate and responsible cause thereof.3 *Page 227 Responsibility for deceased's having taken poison.
While the state maintains that the wound inflicted during the attempted rape and the infection resulting therefrom was the cause of death and that appellant was guilty of murder by reason thereof "even though the poison as a concurrent cause of death were taken by her without legal responsibility therefor by appellant;" yet it also contends that appellant is guilty of murder for the reason that he is legally responsible for deceased's having taken the poison.
It is unnecessary to consider here the much mooted question as to whether suicide is a crime, or to consider the criminal liability of one who advises or aids another to commit suicide (see 37 Cyc. 521). Our statute, as already noted, provides that "Whoever . . . by `administering' poison or `causing the same to be administered,' kills any human being is guilty of murder." (See People v. Roberts (1920), 211 Mich. 178, 178 N.W. 690, 13 A.L.R. 1253.) There was no evidence that appellant "administered" the poison or "caused the same to be administered" to deceased, or that at the time the deceased took the poison she was under any restraint or compulsion by appellant, which would cause her act to be considered in law the act of the appellant.
Where, upon deliberation, one commits suicide because of shame, humiliation or remorse, the one who caused such mental state, — although he may be morally responsible for the death in the sight of God, — is not guilty of murder under the law, unless he in some way procured, advised, compelled, assisted or exercised control over the person performing the act. (See 1 Hale, Pleas of Crown 429; 1 East P.C. ch. 5, § 13; Com. v. Webster (1850), 5 Cush. 295 Mass. 52 Am. Dec. 411; Reg. v. Murton [1862], 3 F. F. 492.)
It is said that the rule of the early common law that a homicide to be criminal must have resulted from corporeal *Page 228 injury, (see 29 C.J. 1080) has been gradually modified and greatly relaxed in modern times, and that fright, fear, nervous shock or producing mental disturbances can now be made the basis of a prosecution for homicide. 13 R.C.L. 846. This may be true in a proper case but I do not believe that such a case has been made out here, nor can I follow the reasoning (nor in view of Potter v. State (1904), 162 Ind. 213, 70 N.E. 129, 102 A.S.R. 198, 1 Ann. Cas, 32, 64 L.R.A. 942, can we approve the holding) of the case usually cited to sustain the statement made in R.C.L.supra, viz: In re Heigo (1910), 18 Idaho 366, 110 P. 1029, Ann. Cas. 1912A, 138 32 L.R.A. (N.S.) 877, (which case held that where a bystander observed an altercation between two men, one of whom was armed, and died as the result of fright, terror and nervous shock, the man who was armed was guilty of manslaughter under an Idaho statute defining the crime).
There is no charge in count one of the indictment, under which the conviction was had, (as there is in count two) that deceased took the poison "acting under fear and duress and the compulsion of said D.C. Stephenson," but the charge in count one is that deceased "distracted with pain and shame so inflicted upon her by said defendants . . . did procure and swallow into her stomach a large quantity of deadly poison, to wit, bichloride of mercury." We must presume from the fact that the jury made no finding of guilty under count two that it did not consider the evidence sufficient to show that deceased destroyed her life under a well-grounded apprehension of immediate violence or injury from appellant so as to make her act "the act of him who compelled the deceased to take the step." Regina v. Pitts (1842), 1 Carrington Marshmans 284; Hendrickson v. Com. (1887),85 Ky. 281, 3 S.W. 166, 7 Am. St. Rep. 596; State v. Shelledy (1859), 8 Iowa 477, 506. *Page 229 See also Rex v. Valade, (Que.) 22 Rev. de Jur. 524, 26 Can. Cr. Cas. 233; Norman v. United States (1902), 20 App. D.C. 494; and other cases cited infra.
Taking of poison as a natural consequence of the rape, attempted rape or bite.
Only one argument by which the state sought to sustain the verdict of guilty under the first count of the indictment remains for consideration, viz.: that one who inflicts a wound is held to contemplate and be responsible for the natural consequence of his act, and that at the time appellant committed the rape or the attempted rape, he was bound to anticipate deceased's act of taking bichloride of mercury. I do not find any evidence to justify a finding that the taking of poison by deceased was such an act as a reasonable person under similar circumstances would have committed, Henderson v. State (1913), 11 Ala. App. 37, 65 So. 721; State v. Preslar (1856), 48 N.C. 421; Reg. v.Donovan (1850), 4 Cox 397; Gipe v. State (1905),165 Ind. 433, 75 N.E. 881, 1 L.R.A. (N.S.) 419, 112 Am. St. Rep. 238, or was a natural consequence of the rape (or attempted rape or the bite made during the same) which the appellant was bound by law to contemplate. Quinn v. State, supra; Treadwell v. State,supra; Bush v. Com., supra; Livingston v. Com., supra; Note 8 A.L.R. 520. The facts in this case do not bring it within the rule laid down in the cases where the direct cause of death was an act of the deceased reasonably due to defendant's unlawful conduct such as Rex v. Valade, supra, where the accused induced a young girl under the age of consent to go alone with him to a secluded apartment and there had criminal sexual intercourse with her, following which she jumped from a window to the street to get away from him and was killed by the fall;Norman v. United States (1902), 20 App. D.C. 494, where death was *Page 230 caused by falling into a canal while attempting to escape from violent assault; Hendrickson v. Com., supra, where accused used such force and violence as to cause his wife from fear of death or great bodily harm to leave the house on a cold night whereby she died of exposure. See also Thornton v. State (1899), 107 Ga. 683, 33 S.E. 673; Adams v. People (1886),109 Ill. 444, 50 Am. Rep. 617; State v. Preslar, supra.
After a consideration of all the foregoing propositions by the court, the per curiam opinion was adopted which holds that the allegation in the indictment that Miss Oberholtzer was "distracted with pain and shame" when she took bichloride of mercury was sufficient to charge that she was mentally irresponsible when she took the poison; and that the evidence was sufficient to show the infliction of physical and mental injuries which rendered the deceased mentally irresponsible at the time of her "suicide." I do not believe the adjective clause in the indictment "distracted with pain and shame" is equivalent to a charge that the deceased was of unsound mind or was mentally unbalanced. Charges in an indictment must be clear and plain and if the grand jury had intended to make a charge that the appellant had by his acts caused Madge Oberholtzer to become mentally unbalanced and of unsound mind they would have done so by a definite and certain charge to that effect.
The trial was not had on any such theory and there is no evidence to indicate that at any time the mind of the deceased was not clear and sound. We cannot assume otherwise without proof. (An assumption that every person who commits suicide is insane as well as an unqualified holding that one who mistreats another so as to cause insanity is responsible for the criminal acts thereafter committed by such person, would lead to most dangerous legal consequences). There was no *Page 231 expert testimony to the effect that Miss Oberholtzer was at any time mentally irresponsible and her own very carefully prepared "dying declaration" does not state nor does it indicate any unsoundness of mind at the time she took the poison. On the contrary such declaration minutely describes her mental processes and narrates and describes the events with great particularity — even to detailing the menu of Stephenson's breakfast. It appears very clearly from her statement that she committed suicide because of "shame, humiliation or remorse." She expressly stated that she decided to take her life "in order to save my mother from disgrace," and that she wanted to kill herself "in Stephenson's presence." The evidence shows she was not accompanied by Stephenson, Klinck or "Shorty," the chauffeur, or under their control when she was in the store where she purchased the hat or in the drug store where she purchased the poison, and that she returned without any compulsion to their rooms at the hotel where she took the poison.
I do not believe that the evidence is sufficient to sustain a finding of guilty under the first count of the indictment and for that reason (as well as other reasons hereinafter stated) believe that the judgment should be reversed with directions to grant appellant a new trial.
Conferring of jurisdiction upon change of venue.
I agree with the conclusion reached by the per curiam opinion on the question as to whether the Hamilton Circuit Court had jurisdiction of the cause, the person and the subject-matter in this prosecution. Appellant's contention is that jurisdiction over the cause and over his person could only be gained by the Hamilton Circuit Court by the depositing in that court of a transcript of the proceedings had in the criminal court of Marion county, duly authenticated by the signature of the clerk *Page 232 and by the seal of said criminal court; that the signature of the clerk to the certificate of the transcript was omitted and does not appear in the transcript, and that therefore there was in fact no transcript at all and that the Hamilton Circuit Court did not acquire any jurisdiction. Appellant does not contend that the criminal court of Marion County did not grant the change of venue and order the case sent to Hamilton County for trial, nor does he contend that the transcript of the record transferred to the Hamilton Circuit Court was incorrect in any particular. The transcript was complete and in proper form, except for the signature of the clerk of the certificate.
Jurisdiction over a defendant is not conferred upon the court to which a change of venue is taken by the signature on the certificate to the transcript of the clerk of the court in which the case was pending before the change, but it is conferred by the order of the court which grants the change and directs where the cause is sent for trial. The change of venue and of jurisdiction is not completed until the requirements of the statute are met, with respect to the depositing of the transcript in the office of the clerk of the court to which the change is granted (§ 2239, 2240, Burns 1926) but where a transcript, regular in form and sealed with the seal of the court, is deposited in the court to which the cause is sent, the jurisdiction of that court attaches and the lack of the signature of the clerk of the other court, in the absence of any attack on the authenticity of the transcript, will be deemed a technical informality which might have been amended in the trial court, and which renders the transcript defective but not void. A proper certification and attestation for a transcript is the signature of the clerk and the affixing of the seal of the court, but the absence of such signature of the clerk to the certificate could have been easily cured and *Page 233 it does not appear that such defect in any way prejudiced any of the appellant's rights.
The appellant did not raise any jurisdictional question in the Hamilton Circuit Court, but acquiesced in the jurisdiction exercised by it and proceeded to trial therein. Appellant points out that no acts on the part of the defendant in a criminal case involving the deprivation of life or liberty can serve to waive that which the law makes essential, or that which the statute prescribes as necessary in order that the court may acquire jurisdiction, but it is also well settled that a party, by asking for a change of venue and appearing to the action in the court to which it is removed, waives his right to complain of any mere irregularity in the matter of the change. The Hamilton Circuit Court properly exercised jurisdiction in this case.
This appellant, in an application to the LaPorte Circuit Court for a writ of habeas corpus for release from the Indiana State prison, presented the same question in this regard that is here decided. That court denied his application and upon appeal to this court its judgment was affirmed. Stephenson v. Daly (1927), 200 Ind. 196, at 202. (See syllabus points 10, 11 and 12), 158 N.E. 289.
Admissibility of dying declarations.
The principal questions in this case upon the admissibility of evidence arose upon the admission of the written dying declaration of deceased, and the testimony of a doctor to whom deceased made oral statements to the same effect as those contained in the written dying declaration. The law concerning the admission in evidence of dying declarations has been discussed in this appeal as exhaustively perhaps as in any case that has ever been before it. I therefore deem it important to state somewhat more fully than has been *Page 234 done in the per curiam opinion the questions involved and the law relating therto. I concur in the decision reached by the court as to the admissibility of the written dying declaration, but believe that the testimony of the doctor was admitted without the necessary foundation being laid therefor.
Deceased's written dying declaration.
The written dying declaration of the deceased consisted of more than three thousand words. It was signed by her on March 28, ten days after her trip to Hammond and seventeen days before her death. It appears from the evidence that just before it was read to and signed by her, her physician for the first time advised her that she was going to die. He told her that she had no chance for recovery; that she was going to die, and told her why — that the blood test that afternoon showed a worse condition and that her condition was unfavorable and that he wanted her to understand it. He gave as reasons to her that she could not recover that her kidneys were broken down and destroyed from the poison and that poison had made such a spread in her system that she could not recover. She said, "Doctor . . . I understand you, I believe you and I am ready to die." This, together with other evidence which is in the record of her statements, and of her physical condition as a result of the poison, meets the two essential requirements for an admissible dying declaration hereinbefore stated, viz.: that the declarant shall be in extremis and shall have abandoned hope of recovery and be under a firm conviction that death is inevitable and near at hand.
The dying declaration was prepared for the deceased's signature by Mr. Asa J. Smith, an attorney and friend of the Oberholtzer family, and others who were assisting him. Mr. Smith went to the Oberholtzer *Page 235 home and saw deceased on the afternoon of the day she returned home. At the request of deceased's mother he had helped to search for her on the previous night, March 16, (after her departure from home on the night of March 15 and the receipt by her mother of a telegram from her dated at Hammond) and had gone with the mother to appellant's home during the search. He was employed by the deceased's father to bring a civil suit against appellant, or "do whatever was necessary in the matter." Mr. Smith visited deceased practically every day from March 17, to March 28. Three or four days before March 28 he began the preparation of the dying declaration. He made notes from memory of what deceased at different times had told him of the events which occurred on her trip to Hammond and reduced the same to writing in his law office. Miss Ermina Moore, an intimate friend of deceased, on March 26, took to Mr. Smith's office notes which she had made, and they also were incorporated by him into the written statement. He selected the words and built up the phrases to make what he thought was the substance of what deceased had told him. This he read over and corrected and then in the presence of Miss Moore and Mr. Griffith D. Dean, his law-office associate, he dictated to a stenographer, from what he had written, the entire statement. Two days later (March 28) Mr. Smith and Miss Moore went through this draft of the statement and again corrected it. Then Mr. Smith again rewrote a part of it in longhand, then redictated to the stenographer the entire statement, except the pages he had rewritten. About 6 P.M. the same day at deceased's bedside, with Mr. Dean, Miss Moore and Dr. Kingsbury also present, Mr. Smith read the statement to deceased very slowly and distinctly. He stopped in the course of the reading after each sentence for her affirmance or denial, and made some corrections which *Page 236 she desired. As he proceeded with his reading he asked deceased if she understood it and if it was correct and she said "I do understand it . . . it is correct," except at certain times she said things were not correct and Mr. Smith made, in ink, the changes she desired. He showed her the place to sign and told her if it was true she could sign it and she said "I will sign it" and did so.
The exception to the rule against hearsay evidence which permits the introduction and consideration in felonious homicide cases of dying declarations was introduced into the law less than two hundred years ago as matter of the fullest necessity or public policy to detect and punish those guilty of crime since by their crime, usually committed in secret, offenders may still the tongues of the only persons in the world who could affirm their guilt. The reasons against admitting such evidence (that they do not [usually] bear the sanction of an oath, are not subject to the test of cross-examination, eliminate the right of the accused to confront the witness, are subject to misconstruction by auditors or amanuensis who are ignorant, inattentive or criminally motivated, that they may permit a conviction on the statement of one whose body is weakened and whose mind may be disordered by the panic of momentary death and who may harbor malice and vindictiveness) — were only put aside on the theory that the immediate approach of death, under the sanction of a moral sense of certain and just retribution, silences every motive to falsehood and by the most powerful considerations induces the mind to speak the truth, creates a situation so solemn and awful as to exclude the supposition that the party making them could have been influenced by malice, revenge or any conceivable motive to misrepresent and amounts to an obligation equal to that imposed by a solemn oath in a court of justice. See cases collected in Note, 56 L.R.A. 353. *Page 237
It was not shown nor was it necessary to show that deceased was under a firm conviction of impending death at the time she held the conversations with the attorney from which he constructed the statement for it does appear that at the time she adopted and signed the statement as her dying declaration she had abandoned hope of recovery and had a firm conviction of impending death. 30 C.J. 257. The fact that the declaration was prepared by a lawyer who was interested in a civil action against appellant should render such a declaration subject to the closest scrutiny but we can not say that the declaration was rendered inadmissible by the fact that he prepared it. In the absence of any evidence of improper conduct on the part of the attorney such objection to the dying declaration would not go to its admissibility, but to its weight, which is solely a question for the jury. 1 R.C.L. 547. In Harper v. State (1902) 79 Miss. 575, 31 So. 195, 56 L.R.A. 372, a dying declaration was held to have been erroneously admitted, the court (after doubting the authenticity of the declaration) holding that there was no sufficient evidence of a solemn sense of impending dissolution when the deceased signed the statement. The statement had been prepared by deceased's attorney, who feared a fatal result might ensue, to be signed by the patient whenever he came to think he would die. The court said: "Moreover, we think a declaration prepared by a person in full possession of his mental faculties and in confident hope of recovery, to be signed in the possible event of a subsequent conviction of a fatal termination is too much tainted to be admissible in evidence." This dicta is not applicable to the facts here nor do we approve it unqualifiedly as a correct statement of law.
Appellant's objection to the admission of state's exhibit No. 1 (the dying declaration) was addressed *Page 238 "separately and severally as to each word, phrase, sentence, paragraph, part, conclusion and opinion" and stated at length his objection to the declaration as a whole (that the corpus delicti had not been established independently of the declaration, that the declaration is one of suicide, that it shows that death was not the proximate result of defendant's acts, that it was made nineteen days before death and when deceased was not inextremis and when she had not abandoned hope and was not under a sense of impending dissolution, that no causal connection was shown between the defendant's act and her death, that it is a recital of past events and the conclusions and opinions of the declarant and is not limited to declarations to identify defendant with the circumstances producing and attending death). The objection was sufficient to raise the general questions concerning the declaration as a whole which we have already discussed, but it was not sufficient as an objection to specific parts of the declaration. An objection generally to "every word, phrase, sentence," etc., does not point out to the court with sufficient certainty the part or parts of the statement which the party deems objectionable.
The court properly struck out of the statement sentences telling of deceased being "impressed with Stephenson's power and influence," of her being "attracted by his apparent influence and power with the state officials and his general political influence," of what he said to her at dances, and what he said when he drove her to her home "while the legislature was in session," because it is not permissible to show by a dying declaration matters occurring anterior to and not immediately connected with the homicide, nor to show the conduct of the parties at another time nor to show the opinions and mental conclusions of the deceased. Montgomery v. State (1881),80 Ind. 338, 41 Am. Rep. 815; *Page 239 Binns v. State (1874), 46 Ind. 311; Jones v. State (1880), 71 Ind. 66. For the same reason the court, if proper objections had been made, should have struck out of the statement — those sentences stating that deceased "first met David C. Stephenson at the banquet given for the Governor at the Athletic Club early in January, 1925," telling of her various dinner engagements with appellant at a hotel, and of a party at his home "with several prominent people."
Appellant points out specifically in his brief numerous statements in the dying declaration which he says are merely "conclusions, opinions and recitals of mental operations of deceased." A mere conclusion or expression of opinion or belief by a dying person is not admissible as a dying declaration,Boyle v. State (1886), 105 Ind. 469, 5 N.E. 203, 55 Am. Rep. 218; Montgomery v. State, supra; Binns v. State, supra, but where a dying declaration contains unimportant expressions of opinion or conclusions such as a number of those statements here objected to are, and which taken in connection with the entire declaration are not prejudicial, their admission is not error.Cleveland v. Com. (1907), 31 Ky. Law Rep. 115, 101 S.W. 931.
Dying declarations are limited to a recital of facts connected with the res gestae of the alleged crime. Under the several counts of the indictment under which appellant was tried the alleged criminal act was murder in the perpetration of or attempt to perpetrate a rape, in the administering of poison and by restraining and preventing medical assistance and services, hence the rather wide scope of the dying declaration here was not improper.
Deceased's oral statements to physician.
The doctor, John F. Kingsbury, after stating his residence, age, and professional training testified that he *Page 240 was called by telephone at 11:30 A.M. March 17, and went immediately to the Oberholtzer home; that he found Miss Madge Oberholtzer lying on a bed in a state of shock, pale and cold and with a rapid pulse; that she was dressed in clothing in a disheveled state, her dress being open in the front exposing bruises on her chest, and that he made a superficial examination through her clothing to determine possible broken bones (having been informed that she had been injured in an automobile accident). He was then asked if in the course of his examination she said anything in reference to whether or not she expected to die, and what it was. He replied (over objection) that "she said she didn't expect to get well, didn't want to get well, that she wanted to die." He was then asked: "Now doctor, just detail any conversation which you may have had with her concerning her condition?" He replied: "I asked her how badly she was hurt; she said she didn't know. I then made a hasty examination of her, found no bones broken and told her I found none, and I asked her how it happened. She said: `When I get better I will tell you the whole story.' Because of her state of shock, and being thrown in on to that condition without preparation, I didn't know how severely she was hurt or injured and pressed her for a reply to my question, she then said . . ." At this point appellant again interposed an objection including the ground that it had not been shown that deceased was in extremis, or that she thought she was going to die soon, which objection was overruled. The doctor then proceeded to relate in an answer that occupies 145 lines of the typewritten record a narration, as told to him by Miss Oberholtzer, of all the events occurring from before the time she left home until she returned.
The only other evidence which had been adduced, up to the time Dr. Kingsbury testified, that would bear on *Page 241 the admissibility of deceased's statement to the doctor as a dying declaration was that given by Mrs. Eunice Schultz, who was a roomer at the Oberholtzer home. She testified that the man who brought Madge home told her that "She was hurt in an automobile accident . . . he said he did not think any bones were broken" that she saw the bruises on various parts of Madge's body which she described. In reply to the following question by the state: "Now Mrs. Schultz what, if anything, did Madge say to you when you came in the room?" Mrs. Schultz testified "She said `Oh I am dying Mrs. Schultz' . . ." The witness further testified that Madge "groaned `Oh' and `Dear Mother'" and told her to call a physician.
The conditions essential for the admission in evidence, as an exception to the hearsay rule, of unsworn statements of a dying person regarding the circumstances of the homicide in the trial of one accused thereof are (1) that the person making the dying declaration must be in extremis, i.e. beyond hope of recovery, and (2) that such person must have abandoned all hope of recovery from the injury alleged to have been inflicted by the accused and be under a firm conviction that his death is inevitable and is near at hand. McKee v. State (1926) 198 Ind. 590,154 N.E. 372; Morgan v. State (1869) 31 Ind. 193; Watson v. State (1878), 63 Ind. 548; Jones v. State (1880), 71 Ind. 66;Archibald v. State (1890), 122 Ind. 122, 23 N.E. 758; Gipe v. State (1905), 165 Ind. 433, 75 N.E. 881, 1 L.R.A. (N.S.) 419, 112 A.S.R. 238; Williams v. State (1907), 168 Ind. 87, 79 N.E. 1079. These conditions were not proven to have existed at the time the deceased made the statements to the physician which were here admitted in evidence. There was no testimony that at that time there was no hope of deceased's recovery or that she was near death. Deceased stated that she didn't know how badly *Page 242 she was hurt and the doctor testified that at that time he did not know how severely she was hurt or injured. Regarding deceased's mental attitude toward her condition, she told the doctor that she didn't expect to get well, and said to Mrs. Schultz "I am dying," yet she had Mrs. Schultz send for the doctor and said to the doctor "When I get better I'll tell you the whole story."
Contradictory statements as to expectation of impending death have been held to prevent the admission of a statement as a dying declaration, 30 J.C. 266, citing, Bilton v. Terr. (1909),1 Okla. Cr. 566, 99 P. 163.
The appellee contends that the words last above quoted "could not have been meant literally," that deceased spoke the words to avoid further questioning by the doctor, and that regardless of such words the deceased at that time was under a firm conviction of impending death. It is possible that even where a declarant expressed an opinion that he would recover, the circumstances may show that such was not his real belief. 30 C.J. 266. Also the fact that a declarant said he would not recover or would die does not show that he was without hope and expected a speedy dissolution; his statements in this regard also my be overcome by the surrounding circumstances. 30 C.J. 265, 266; Morgan v.State, supra.
Prior to the introduction in evidence of the testimony of Dr. Kingsbury regarding what deceased told him there had been no evidence received showing wounds or injuries so serious or illness so critical, that an inference would necessarily arise that the declarant was under a pending sense of dissolution (seeGipe v. State, supra; McKee v. State, supra.) The only witnesses who had testified were the mother of deceased and Mrs. Schultz, and no circumstances had been detailed in evidence which would serve to meet the conditions stated *Page 243 above under which the statements of deceased to Dr. Kingsbury would be admissible as dying declarations of Madge Oberholtzer.
It may be noted further that at the time Dr. Kingsbury testified concerning what deceased told him, no proof had been offered by the state to show that Madge Oberholtzer died, or the date when she died. (The only thing in evidence, at that time, in which her death was referred to, even indirectly, was a question to Matilda Oberholtzer "What relation did you sustain to Madge Oberholtzer during her lifetime?" which was answered "I am her mother"). The death did not occur until about a month later than the conversation detailed by Dr. Kingsbury. While the admissibility of such evidence does not depend upon the length of the interval between the declaration and the death, Jones v.State (1880), 71 Ind. 66, 73, 74; Wigmore, Evidence (2d. Ed.) § 1441, yet such length of time is a proper element to be considered in determining whether the declarations were made under a sense of impending death. State v. Calvin (1910), 226 Mo. 446, 126 S.W. 448; State v. Schmidt (1887), 73 Iowa 469, 35 N.W. 590.
Statement made by the court to the jury.
I can not concur in the holding of the per curiam opinion regarding the remarks of the trial judge in ruling on the admissibility of evidence (Appellant's 16th point). This court disapproves the practice of such discussion by the trial court in the presence of the jury, but by affirming the judgment holds that such remarks were not reversible error.
The state in examining, as a witness, the father of the deceased asked him to relate what deceased told him had happened on her trip to Hammond. An objection was made by appellant on several grounds stated, the principal one being that a proper foundation for its *Page 244 introduction as a dying declaration had not been laid. Thereupon, in the presence of the jury and over the objection of the appellant, the court made the following statement:
"On the question of dying declarations, gentlemen, this is the court's view: I think I can explain that. The dying declaration may be based on conditions rather than statements; I mean, not rather than statements but as well as statements. She may make a statement to the effect that she does not think she is going to get well, she is sure she is going to die; that would form the basis of a dying declaration. It has also been held that if her condition is such that she must know that she can't get well, then that is sufficient upon which to base a dying declaration, even though she might not utter a word about that condition. The counsel stated, perhaps unthoughtedly, because he did state she more than once said to him that she did not think she would get well, she made it the first time and at the time he tried to encourage her, this language was, "Daddy, I can't get well"; she made that several times. Now the question is not provable only in murder cases that is true, but the theory is that, while it is not sufficient in a case of suicide, but this comes perhaps a little nearer by the line, along this line. In England there are crimes for persons to commit suicide, but here is the situation: it is not a question we are trying of suicide, but the complaint proceeds that murder has been committed indirectly by causing the suicide, now the question it, whether that can be done, and I am letting this go to the jury for the purpose because I think it can. Here is the situation, suppose it is suicide, this is for the jury, I am not deciding the question but that is the reason I am ruling on the evidence. Suppose — and I am not saying anything about what kind of a lady Miss Oberholtzer was, but suppose she was a virtuous woman, suppose anybody, I don't take her case, suppose any woman was a virtuous woman and she was attacked for the purpose of committing rape, if that be true, assuming that, not as being true, but just for the purpose of the argument. She might be confronted with this condition, I have *Page 245 either got a chance to lose my virtue or life, suppose her virtue was dearer to her than her life, suppose that was true, would the law say to her, no, you can't take your life, you must submit your virtue. The question is, must these men anticipate this suicide as a reasonable result of their acts. Suppose I attack a virtuous woman, what must I presume? Will the law allow me to presume she does not attach greater value to her virtue than her life; will the law say that I am not presumed to indulge this presumption that she would take her life because she regards her virtue more than her life; will the law say that? I think that is the thing for the jury. The question is, am I presumed she would stake her virtue or presumed she will take her life if a virtuous woman. That is for the jury to determine; if they determine that is a reasonable thing for her to do, then I have committed murder, if it is unreasonable, I have not; if the law says to the man who has attacked a virtuous woman, — I am not saying that is the condition here, but I am saying it on a supposed case, but in passing on the evidence and giving a reason, and I do this once for all. If the law charges me under such condition, I attack a real virtuous woman I am presumed to intend the natural consequences of my acts; now what are the natural consequences? I might place a virtuous woman where she would have to say, I stand every chance of losing my virtue or losing my life; must I presume that woman — am I allowed to presume that woman regards her life dearer than her virtue; on the other hand, must I anticipate that she regards her virtue dearer than her life? If that is the fact, that is a fact for the jury to determine; 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."
Appellant's objection to the statement made by the court in the presence of the jury was overruled, as was his motion to set aside the submission and discharge the jury on account of the making of such statement. Appellant's *Page 246 counsel then asked leave to discuss with the court the law on the questions involved, which the court declined to hear and then made the following further statement:
"I would not want the attorneys to think the court had not carefully considered, and I would not want them to say I have not; I don't say I am right but that is my opinion; I would not shoot off that way unless I had given it thought, and I don't suppose the counsel means to intimate, but we will take that up, gentlemen, and discuss it later."
The question to be decided by the trial court was whether it should sustain or overrule the objections made by defendant's counsel. The ruling of the court could easily have been announced in two words, yet the court used 700 words. Stating aloud to the jury the long series of mental processes by which the court reached its conclusion could serve no useful purpose. Instructions to juries at the proper time and in an orderly manner are provided for by law, and it highly improper for a court to make a long discourse in the presence of the jury on the law or the theory of the case, which can be, and doubtless was in this case, accepted by the jury as an instruction. If the judge desired to expound to counsel his view of the law involved he should have done it out of the presence of the jury. It would have been proper for him, in the absence of the jury, to have listened to argument by counsel on the question involved. In its remarks, the court assumed certain situations of fact to exist which were not alleged in the indictment nor shown to exist by evidence in the case; it made uncertain and incomplete statements regarding certain theories and rules of law which were of doubtful application to the case at bar, and I believe that such remarks were prejudicial to appellant's rights. *Page 247 Scope of cross-examination of interested witness.
The attorney who prepared the deceased's written dying declaration testified that he had gone, with deceased's mother, to appellant's house hunting for her on the night the party returned from Hammond and that he had gone to deceased's home practically every day from March 17 to 28, during which time he wrote, corrected and rewrote the dying declaration. On cross-examination he testified that he had been employed by deceased's father to collect money from appellant or to do whatever was necessary, but the state's objections were sustained to questions asking him whether he had prepared a complaint in the case and whether he had gone to see appellant at his office about a settlement of the case. A defendant has the right to fully cross-examine the witnesses against him and to test thereby their credibility or show their interest, bias or prejudice against him. Bedgood v. State (1889), 115 Ind. 275, 281, 17 N.E. 621; Hyland v. Milner (1885), 99 Ind. 308, 311;Kinsman v. State (1881), 77 Ind. 132, 137. I believe it would have been proper to have permitted the questions asked to be answered, but by the evidence adduced in response to questions which the court did not permit to be answered, the nature of the attorney's employment and his interest appeared and we can not say that the trial court abused its discretion in limiting as it did the scope of the cross-examination. Foust v. State (1928), 200 Ind. 76, 161 N.E. 371.
Inapplicable instructions.
Instruction number 45 given by the court of its own motion read as follows:
"The law declares that one who inflicts an injury on another and thereby accelerates his death shall be held criminally responsible therefor, although the death would not have resulted from the injury, *Page 248 but for the diseased and wounded condition of the person so injured, already existing at the time of such act of acceleration."
This instruction is selected as one of several which are not applicable to the evidence. The giving of such inapplicable instructions could only tend to mislead and confuse the jury. I can not agree that the court was justified in giving instruction 45 upon the theory that under counts 2 and 4 appellant is charged with willful murder by poison and that the act of acceleration referred to in the instruction was the poison.
I am in accord with all the statements made in the separate opinion of Treanor, J. which do not conflict with the views expressed herein.
1 Note 1. Some aspects of this case not treated in the opinion appear in Cornelius, Cross-Examination of Witnesses (Bobbs-Merrill 1929) which devotes chapter 27, pages 509 to 622 to the case.
2 Note 2. Many of the cases cited by the state to sustain its contention last stated have no direct application to questions arising in the case at bar. Hemblin v. State (1908), 81 Neb. 148, 115 N.W. 850; People v. Kane (1915),213 N.Y. 260, 107 N.E. 655; Hopkins v. U.S. (1894), 4 A.C. (D.C.) 430; State v. Hambright (1892), 111 N.C. 707, 16 S.E. 411; and Odeneal v. State (1913), 128 Tenn. 60, 157 S.W. 419, involve questions of the effect of unskillful or improper medical treatment, of deceased's neglect to obtain medical treatment, or to take proper care of himself, of a surgical operation made necessary by a wound and performed with reasonable skill. These questions are not involved in the case at bar, nor are the rules announced therein so directly applicable as to require discussion. See Hall v. State, supra, where, at page 607 (199 Ind.) the well known passage from Hale, Pleas of Crown, p. 428, is quoted and the rules applicable where death results from a disease caused by a wound or injury or from the treatment thereof are discussed. State v. Smith (1887), 73 Iowa 32, 34 N.W. 597; Com. v. Fox (1856), 7 Gray 586 (Mass.) and Harvey v.State (1916), 15 Ala. App. 311, 73 So. 200, cited by the state, were cases where ill and enfeebled wives died from assaults committed by their husbands; while Fisher v. State (1882),78 Tenn. 151 (10 Lea); Duque v. State (1909), 56 Tex.Crim. 214,119 S.W. 687; and People v. Ah Fat (1874), 48 Cal. 61, cited by appellee (like the list of five cases cited in Corpus Juris) involved deaths resulting from more than one injury sustained in fights participated in by several persons.
3 Note 3. The foregoing statement is made, based only on a consideration of that evidence properly admissible to support count one of the indictment on which the conviction was had, and disregarding the evidence introduced to support count four on which there was no finding of guilty. The doctors testifying for the state said that in their opinion the delay in securing medical attention for deceased greatly increased the chances of fatality and tended to shorten the life of deceased. On a re-trial (which I believe should be ordered) the question might arise as to whether the mercurial poisoning or the delay in furnishing medical attention constitutes the proximate cause of the death, but such question is not before us on this appeal. (The granting of a new trial would return this cause to the lower court for a trial de novo on all counts of the indictment, the same "as if no trial had been had," § 2324 Burns 1926; Veatch v. State (1878), 60 Ind. 291, 295; State v. Balsley (1902),159 Ind. 395, 65 N.E. 185; Ex Parte Bradley (1874),48 Ind. 548.)