Stephenson v. State

179 N.E. 633, 205 Ind. 141, 1932 Ind. LEXIS 33

• Court: Indiana Supreme Court
• Decided: January 19, 1932
• Docket: No. 25,310.
• Status: Published

Opinions

Appellant, together with Earl Gentry and Earl Klinck, was charged with the crime of homicide by an indictment in four counts returned by the Grand Jury of Marion County, Indiana, which indictment, omitting the formal parts, reads as follows:

"The Grand Jurors of the County of Marion and State of Indiana upon their oaths, present that David C. Stephenson, Earl Gentry and Earl Klinck, on or about the 16th day of April, A.D. 1925, at and in the County of Marion and State aforesaid, did then and there unlawfully, feloniously and with premeditated malice kill and murder Madge Oberholtzer in the manner and form and by the means following, to wit: That said David C. Stephenson, Earl Gentry and Earl Klinck did then and there on the 16th day of March, 1925, wrongfully, unlawfully and feloniously by force of arms and by duress and by putting her the said Madge Oberholtzer in fear and against her will take possession of the body and person of her, the said Madge Oberholtzer, and did then and there wrongfully, unlawfully and feloniously by force of arms and by duress and by putting her, the said Madge Oberholtzer in fear and against her will place her in a drawing room of a certain pullman passenger car which was then and there a part of a railroad train, which train was then and there scheduled to and did shortly thereafter depart from the city of Indianapolis for a regular trip to the city of Chicago; and said defendants did then and there wrongfully, unlawfully and feloniously, by force of arms and by duress and by putting her, the said Madge Oberholtzer in fear and against her will restrain her of her liberty in the drawing room of said car on said train during the progress of said train to the city of Chicago until the city of Hammond, in the State of Indiana, was reached; and said defendants did unlawfully and feloniously while so holding possession of the body and person of said Madge Oberholtzer, as aforesaid, and so restraining her of her liberty in the drawing room of said car as aforesaid, upon the body and person of her, the said Madge Oberholtzer, commit and assault, and did her, the said Madge Oberholtzer, unlawfully and feloniously in a rude and insolent manner her the said Madge Oberholtzer strike, beat, bite and grievously wound with the unlawful and felonious intent her, the said Madge Oberholtzer, to ravish and carnally known forcibly and against her will; and said defendants when said train arrived at the city of Hammond at about 6 o'clock in the morning of the 17th day of March, 1925, still unlawfully and feloniously, while so holding possession of her the said Madge Oberholtzer and so restraining her of her liberty as aforesaid did cause her to depart from said car of said train and to enter the room of a hotel in said city of Hammond and to occupy a bed with said defendant Stephenson; that thereafter on the said 17th day of March, 1925, in said city of Hammond, the said Madge Oberholtzer, distracted with the pain and shame so inflicted upon her by said defendants as aforesaid, did procure and swallow into her stomach a large quantity of deadly poison, to wit: Bichloride of mercury; that said defendants on said day with full knowledge that she the said Madge Oberholtzer had taken said poison as aforesaid and although requested by her so to do did unlawfully, feloniously and wilfully wholly fail and refuse to procure for or furnish to her the said Madge Oberholtzer any antidote for said poison or any attention or help from any physician or any one skilled in counteracting the effects of said poison although they and each of them were then and there fully able to procure such antidote and the help of such physician; that said defendants did, on the afternoon and night of said March 17th, still unlawfully and feloniously by force of arms and by duress and by putting her the said Madge Oberholtzer in fear holding possession of the body and person of her the said Madge Oberholtzer and restraining her of her liberty, place her in an automobile and by said vehicle did transport her back to the city of Indianapolis and did during said night and until near noon on the 18th day of March so hold possession of her body and person and restrain her of her liberty as aforesaid in a room in a garage of said defendant Stephenson, and did at all times during said return and at all times during the imprisonment of her the said Madge Oberholtzer in said garage unlawfully and feloniously wholly fail and refuse to furnish or provide for or administer to any antidote for said poison and did unlawfully and feloniously wholly fail and refuse to procure for her or furnish to her any attention by or help from any physician or any one skilled in counteracting the effects of said poison although the said defendants and each of them were then and there fully able to procure such antidote and help for such physician; that thereafter she the said Madge Oberholtzer did at and in the County of Marion aforesaid languish and languishing did thereafter on April 14th, 1925, in said county die from the effects of her wounds inflicted as aforesaid and said poison taken as aforesaid.

"And so the Grand Jurors aforesaid upon their oaths aforesaid do charge and present that said defendants did, by the manner and means aforesaid her the said Madge Oberholtzer unlawfully, feloniously and with premeditated malice kill and murder, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.

"COUNT TWO

And the Grand Jurors aforesaid, upon their oaths aforesaid do further present and charge that David C. Stephenson, Earl Gentry and Earl Klinck on the 16th day of March, A.D. 1925, at and in the County of Marion and State aforesaid did then and there unlawfully, feloniously and 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 Klinck, then and there swallow into her stomach and body by which she then and there thereby died.

"And so the Grand Jurors aforesaid upon their oaths aforesaid do present and charge that David C. Stephenson, Earl Gentry and Earl Klinck did unlawfully, purposely, feloniously and with premeditated malice, in the manner and form and by the means aforesaid, the said Madge Oberholtzer kill and murder contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.

"COUNT THREE

And the Grand Jury aforesaid upon their oaths do further present and charge that David C. Stephenson, Earl Gentry and Earl Klinck, on the 16th day of March, 1925, at and in the County of Marion and in the State of Indiana, did then and there unlawfully and feloniously make an assault upon the body and person of one Madge Oberholtzer, a woman of the age of twenty-eight years, and her the said Madge Oberholtzer did then and there 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 her the said Madge Oberholtzer to ravish and carnally know, from which said assault and from which said touching, biting, striking and wounding and as a result thereof the said Madge Oberholtzer, did then and there sicken, languish and die.

"And so the Grand Jurors aforesaid upon their oaths aforesaid do charge and present that said David C. Stephenson, Earl Gentry and Earl Klinck did unlawfully and feloniously in the manner and form and by the means aforesaid the said Madge Oberholtzer kill and murder, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.

"COUNT FOUR

The Grand Jurors aforesaid, upon their oaths aforesaid, further present that David C. Stephenson, Earl Gentry and Earl Klinck on or about the 16th day of April, A.D. 1925, at and in the County and State aforesaid, did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder one, Madge Oberholtzer, in the manner following, to-wit: that they the said David C. Stephenson, Earl Gentry, Earl Klinck and each of them did then and there unlawfully, feloniously, wilfully and forcibly take possession of and assume and undertake the custody and control of the body and person of the said Madge Oberholtzer against her will, she the said Madge Oberholtzer being then and there in a weak, sick and helpless condition, and did then and there assault, beat, strike and bite and wound the said Madge Oberholtzer with the unlawful and felonious intent then and there to rape, ravish and carnally know her the said Madge Oberholtzer against her will, that by reason of said assault and wounds aforesaid, the said Madge Oberholtzer was then and there in great distress of mind and body and distracted with pain and grief and did then and there while in the throes of such bodily pain and mental grief and distraction procure and swallow a quantity of poison to wit: bichloride of mercury, that thereupon said Madge Oberholtzer became violently ill and was then and there in need of medical treatment, attention and the services of a physician, such medical services and treatment being then and there necessary to the preservation and prolongation of the life of her, the said Madge Oberholtzer, all of which was then and there well known to the said David C. Stephenson, Earl Gentry and Earl Klinck and each of them, and they and each of them being then and there able to provide such medical attention, services and assistance and she, the said Madge Oberholtzer being then and there weak, helpless and dependent upon the said David C. Stephenson, Earl Gentry and Earl Klinck for such medical care, treatment and services; that they the said David C. Stephenson, Earl Gentry and Earl Klinck and each of them did then and there unlawfully, feloniously and forcibly imprison, restrain and prevent said Madge Oberholtzer from obtaining such medical assistance and services with the unlawful and felonious intent on the part of each of them to kill and murder the said Madge Oberholtzer; that due to said acts aforesaid, on the part of the defendants aforesaid, and each of them, in preventing her from obtaining such medical attention and preventing from obtaining the services of a physician she the said Madge Oberholtzer then and there languished and afterward to wit: on the 14th day of April A.D. 1925, she, the said Madge Oberholtzer, then and there and thereby died from the effects of said poison aforesaid, and so the Grand Jurors aforesaid, upon their oaths aforesaid do say and charge that said David C. Stephenson, Earl Gentry and Earl Klinck in manner and form aforesaid, did kill and murder said Madge Oberholtzer, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana." Gentry and Klinck were acquitted.

The trial court sustained a demurrer to appellant's plea in abatement, overruled his motion to strike out parts of count one and four, and to quash the indictment, to all of which rulings proper exceptions were reserved. Appellant entered a plea of not guilty, and filed his motion for a change of venue from the county, which motion was sustained by the court and the cause was sent to Hamilton county for trial. Appellant there filed a motion to be let to bail, and to require the state to elect upon which count of the indictment it would go to trial. Each of said motions were overruled and exceptions saved. During the trial appellant twice moved to have the court set aside the submission of said cause and discharge the jury, and at the conclusion of the State's evidence moved for an instructed verdict in his favor, which motions the court overruled.

The court instructed the jury in writing, giving fifty-seven instruction, twelve of which were tendered by appellant, and twenty-seven given by the court of his own motion, over the objections of appellant.

The jury returned a verdict finding appellant "guilty of murder in the second degree as charged in the first count of the indictment" and fixing his punishment at life imprisonment, on which verdict judgment was entered on November 16th, 1925.

Appellant filed a motion to set aside and vacate the judgment; that he be held in the Hamilton County jail pending the preparation and filing of his motion for a new trial; motion in arrest of judgment, motion for a new trial, each of which was overruled by the court.

Appellant, by his first, second, third, and fourth assignment of errors, presents the question of whether the Hamilton Circuit Court acquired jurisdiction over the person of the 1. defendant, over the subject-matter of the action, to try said cause and pronounce judgment thereon. Appellant's only reason for this contention is because the transcript of the proceedings in the Marion Circuit Court was not signed by the clerk of the Marion Circuit Court. Appellant says that the omission of the signature of the clerk is fatal and that there never was a legal transcript of the proceeding in the Marion Circuit Court filed with the clerk of the Hamilton Circuit Court, and cites in support thereof sects. 2239, 2240, 11846, Burns 1926, and Fawcett v. State (1880), 71 Ind. 590.

Section 2239, supra, provides that: "When affidavits for a change of venue are founded upon excitement or prejudice in the county against the defendant, the court, in all cases . . . punishable by death, shall grant a change of venue to the most convenient county. The clerk must thereupon immediately make a transcript of the proceedings and orders of the court, and, having sealed up the same with the original papers, shall deliver them to the sheriff, who must, without delay, deposit them in the clerk's office of the proper county, and make his return accordingly. . . ." Sec. 2240, supra, provides that: "The jurisdiction of the court to which the change of venue is granted shall be complete, and the cause must be docketed and stand for trial at the first term thereafter; and such court shall take cognizance of such cause and proceed thereon to trial, judgment and execution in all respects as if the indictment therein had been found and returned by the grand jury impaneled in such court, . . ." The appellant, as stated above, does not contend that the procedure set out in the latter part of § 2239, supra, was not followed. It will be observed that neither § 2239 nor § 2240 expressly requires the transcript to be certified, but only requires the clerk to make a transcript, which means a copy. Webster defines the word transcript as "that which has been transcribed; a copy of any kind." Worcester says it is a "writing made from or after an original; a copy." Burill defines it as "a copy, particularly of a record." Bouvier, as "a copy of an original writing or deed." Our own court defined the word transcript in the case of Mitchell et al. v. Beissenherz (1922), 192 Ind. 587, 135 N.E. 885, as follows: "A transcript is what the name implies, a copy." The Supreme Court of Nebraska, inState v. Board, etc., 7 Nev. 83, 95, said: "The word `transcript' suggests the idea of an original writing. The word, not only in its popular but legal sense, means a copy of something already reduced to writing." Then was there, in fact, a transcript made by the clerk of Marion County, sealed up with the original paper, delivered to the sheriff who in turn deposited them in the office of the clerk of the Hamilton Circuit Court. This is the only requirement of the two sections above. But appellant says that § 11846, supra, is applicable here and calls our attention toFawcett v. State, supra, which holds that the certificate of the clerk, signed and sealed is necessary to the legality of the transcript and without it there is legally no transcript. Sec. 11846, supra, reads as follows, "In all cases where a complete record is dispensed with, the production of the papers and entries relating thereto, and all transcripts thereof, certified and attested with the seal of such court as complete copies of all the papers and entries of such case, shall have the same force in evidence as a transcript of a complete record thereof." The Fawcett case holds that the last above quoted section of the statute is applicable in a change of venue case, and requires the transcript thereof to be signed by the clerk to which reasoning we can not agree. We are of the opinion that § 11846, supra, has no application to a case of this kind and was never intended by the legislature to require the clerk of the circuit court to certify to a transcript on change of venue. Therefore, insofar as the case of Fawcett v. State, supra, conflicts with the views herein expressed, the same should be and is hereby overruled. We are further strengthened in our view of the above statutes for we find that the legislature when they required a transcript to be certified they used appropriate language to that effect. Section 1946, Burns 1926, governing appeals from the justice of the peace to the circuit court, expressly provides that the justice shall make out and certify a complete transcript, etc., also § 716, Burns 1926, which has to do with transcripts on appeal to this court, expressly provides that the transcript shall becertified and sealed by the clerk. We find no such provision in the statute governing the procedure in changes of venue cases. We do not desire to be understood by what we have said as discouraging the practice which has been very general in this state, of the clerk of the circuit court certifying to transcripts on change of venue, as we feel this is very good practice, but we can not agree that the failure of the clerk to affix his signature to the certificate is essential to the legality of the transcript, where all the requirements of the statute has been satisfied.

Appellant's fifth assignment of error relates to the action of the court in sustaining appellee's demurrer to his plea in abatement. Appellant alleges in his plea in abatement that 2. there was no legal evidence before the grand jury on which it could return an indictment. This question was decided adversely to appellant's contention in the case of Pointer v.State (1883), 89 Ind. 255, in which case the following language was used: "The question attempted to be presented by the first and second causes for a new trial could therefore only have been presented by pleading them in abatement and by pleading them in bar, all matters in abatement were waived. . . . It is, nevertheless, no ground for a plea in abatement, that the indictment was found without evidence, or without sufficient evidence, or that no vote was taken by the grand jury on the indictment." See 31 C.J. 586, § 50, Guy v. State (1906),37 Ind. App. 691, 77 N.E. 855.

Appellant's sixth and seventh assignments of error relate to the overruling of his motion to strike out parts of count one of the indictment, particularly the latter part thereof which 3. relates the happenings subsequent to the taking of poison by Miss Oberholtzer and which charged that appellant failed to provide medical aid. A motion to strike out parts of an indictment is not provided for by our code of criminal procedure, yet this court has recognized such procedure for the purpose of removing from an indictment such allegations as serve only to prejudice the court or jury against the defendant, without aiding or contributing to the statement of the offense charged.

This count of the indictment charges the whole criminal program as one transaction. If we assume the facts to be that the appellant is criminally chargeable with the taking of the 4. poison by Miss Oberholtzer, and that the wound inflicted in the assault and battery with intent to rape, plus the effects of the poison, plus the unlawful imprisonment and failure to render aid and assistance, set out in the latter part of the count, caused the death, and that she would not have died in the absence of the wound, or the poison, or the unlawful imprisonment, or failure to give aid, all of which were unlawful and criminal, then we have a state of facts which makes the latter part of the first count a necessary allegation, and one without which the jury could not have found the appellant guilty under the first count or any of the other counts in the indictment, notwithstanding they might believe he was guilty of acts which would justify a conviction of murder under proper allegations.

The first count charges that death resulted from the effects of the wound and the poison. It is obvious that death would not have resulted from the imprisonment and failure to give aid alleged, since such imprisonment and failure to give aid was only injurious to the extent that it contributed to and aggravated the results of the wound and the poison; and it is equally obvious that death might not have resulted in the absence of the imprisonment and failure to give aid, and the jury might readily have believed, notwithstanding the criminal responsibility of the appellant for the wound and the poison, that death would not have ensued except for the imprisonment and failure to give aid.

We are not concerned with the question of whether the wound or the poison was the proximate cause of death, since the first count charges that the appellant was responsible for all of the wrongs. If each contributed, the extent to which they influenced her death is immaterial. If one person had been responsible for the wound, and another had been responsible for the poison, and still another for the imprisonment and failure to give aid, the first two having no cause to anticipate the latter, it would be highly important to determine which was the proximate cause of the death, but since one person was responsible for all, the influence of either in bringing about the result is immaterial if the result was produced by the combined influence of all.

The instructions of the court, insofar as they effect the first count of the indictment, are consistent with this theory. Under this theory, the defendant Klinck would be guilty of homicide under the first count of the indictment if he aided and abetted the appellant by assuming and undertaking the imprisonment in the Stephenson garage after the return from Hammond. He would be liable as an accomplice and not as an accessory. For, where one contributes to a particular result by his unlawful act, he is held responsible as though he alone had produced it.

Appellant's eighth and ninth assignments of error question the ruling of the court on his motion to quash the first count of the indictment. Appellant's motion to quash states the 5-8. statutory grounds, (a) that the facts stated in count one do not constitute a public offense; (b) that count one does not state the offense with sufficient certainty. Appellant states that the law requires the facts and circumstances constituting the offense to be stated in plain and concise language; also that it must be shown by proper allegations that the alleged act or acts of the accused was the proximate cause of the death as distinguished from the cause of a condition affording an opportunity for the compassing of death by some other unconnected agency. It is contended by appellant in his brief that the indictment is fatally defective for he says the facts show that an independent supervening cause of death is given, it being alleged that deceased voluntarily procured and swallowed a large quantity of deadly poison, and this is given as one of the joint causes of death. Then appellant urges that it is the law that when wounds are inflicted by one person on another, which wounds are not within themselves fatal, and a supervening cause intervenes, such supervening cause not being at the direction, request or connivance of the one inflicting the wounds, and that but for such supervening cause death would not have resulted, the infliction of the wounds is not the proximate cause of death, but the supervening cause is the proximate cause, and the one responsible for the death. We readily agree with appellant's statement of the law, and in the cases of Bush v.Commonwealth (1880), 78 Ky. 268; Rigsby v. State (1910),174 Ind. 284, 91 N.E. 925; Kelley v. State (1876),53 Ind. 311, and other cases cited by appellant, we think the above rules were correctly and properly applied. So if it be true, as appellant contends, that the indictment alleges that Madge Oberholtzer voluntarily committed suicide, that is that she took her own life while in sound mind, such an act on her part would constitute an intervening responsible agent, such as would break the causal connection between the acts of appellant and the death of Madge Oberholtzer. But we can not agree with appellant in this construction of the first count of the indictment, for it is alleged in said count, in effect, that Madge Oberholtzer was at the time she swallowed the poison, distracted with the pain and shame inflicted upon her by appellant. If the allegations be true, and we must so consider them on a motion to quash, then the act of Madge Oberholtzer in taking the poison was not the act of a responsible agent, and the chain of cause and effect between the acts of appellant and the death would not be broken, and appellant would be guilty of murder, provided, the alleged irresponsible mental condition of Madge Oberholtzer could be said to be the natural and probable result of the alleged treatment by appellant. Whether or not the alleged treatment accorded Madge Oberholtzer by appellant would naturally and probably result in rendering her distracted, and mentally irresponsible was a question of fact for the jury. We think the facts and circumstances alleged and set out in the indictment were sufficient, if proven, to justify a finding of guilty by the jury. Regina v. Pitts (1842), Car. Mar. Rep. 284, 174 English Rep. 509; Rex v. Beech (1912), 23 Cox Crim. L. Cases 181; Wilder v. Russell Library Co. (1927),107 Conn. 56, 139 A. 644, 56 A.L.R. 455; Wharton on Homic. § 374; Wharton Crim. Law, 10th Ed. § 167.

Appellant contends that said first count is defective in that it nowhere charges the appellant with the purpose to kill Madge Oberholtzer. This allegation, we think is not necessary 9-14. where it is alleged that life is taken in the commission of a felony, such as attempted rape, as is charged in the first count of the indictment, § 2412, Burns 1926; Moynihan v. State (1880), 70 Ind. 126, 36 Am. Rep. 178; Cole v.State (1922), 192 Ind. 29, 134 N.E. 867. The sufficiency or insufficiency of an indictment may be tested by the answer to the following question: "Can the facts properly alleged be true, and the defendant innocent of the offense charged against him?" If the answer must be in the affirmative, the indictment is bad; if in the negative the indictment is good. State v. Hilgendorf (1899),23 Ind. App. 207, 55 N.E. 102. An indictment which charges a public offense with reasonable certainty is good although the offense may not be charged with strict formality, and there may be surplusage in the indictment. Hobbs v. State (1893),133 Ind. 404, 32 N.E. 1019, 18 A.L.R. 774; State v. White (1891),129 Ind. 153, 28 N.E. 425; Fisher v. State (1891),2 Ind. App. 365, 28 N.E. 565; State v. McDonald (1886),106 Ind. 233, 6 N.E. 607; Myers v. State (1885), 101 Ind. 379. Defects that do not affect the substantial rights of the defendant are not sufficient to require the quashing of an indictment or information. Billings v. State (1886), 107 Ind. 54, 6 N.E. 914, 7 N.E. 763, 57 Am. Rep. 77; Woodward v. State (1885),103 Ind. 127, 2 N.E. 321. An indictment that fairly informs the accused of the offense charged against him and enables the court to pronounce judgment according to the right of the case is sufficient. Woodward v. State, supra; State v. Shaw (1892),22 Or. 287, 29 P. 1028. Under the code of criminal procedure in this state no more certainty is required in criminal than in civil pleading; all that is required is that the averments be certain to a common intent. Meiers v. State (1877),56 Ind. 336, 342; McCool v. State (1864), 23 Ind. 127, 129; State v. Jenkins (1889), 120 Ind. 268, 269, 22 N.E. 133; State v.Hopper (1892), 133 Ind. 460, 464, 32 N.E. 878; Gillett's Criminal Law (2nd Ed.) Sec. 125. Testing the first count of the indictment in this case by the rules above stated we are forced to the conclusion that the indictment is good.

Appellant next urges that the court below erred in not requiring the state to elect on which count it would go to trial. Where an indictment contains several counts, each charging 15. the murder of the same person, but in a different manner, the state can not be compelled to elect between such counts. Merrick v.State (1878), 63 Ind. 327.

In his motion in arrest of judgment appellant urges the same reasons that he urged in his motion to quash, and we need say nothing further on this question.

Appellant contends that the trial court erred in not permitting him to remain in the Hamilton County jail pending the preparation and filing of his motion for a new trial. The statutes, §§ 16. 2358-2359, Burns 1926, provide that the clerk after the conviction and sentence must without delay certify a copy of the judgment to the sheriff and the sheriff must within five days convey the convict to the prison. It is true that this court, in Ex Parte Huffman (1914), 181 Ind. 211, 104 N.E. 511, held that under Art. 1 § 13 Const., § 65, Burns 1926, the right of an accused "to be heard by himself" continues until the disposition of a motion for a new trial and that "the trial court would not be warranted in ordering the sheriff to take the petitioner to the state prison pending the determination of his motion for a new trial." But in the case at bar the court on its own motion ordered the appellant returned to Hamilton County on December 12, when his motion for a new trial and other motions were filed and ruled upon. No showing is made that appellant's constitutional right to be heard was in any way infringed or that he or his counsel were prevented from preparing a proper and complete motion for a new trial. On the contrary, the motion appears to be longer and more involved than it needed to be. The procedure that was had in this case, in this regard may have been necessary in the opinion of the court, either for the protection of the prisoner or to secure the state from his possible escape. No reversible error appears from the record on this question.

Appellant objected to certain testimony of Dr. John K. Kingsbury. After stating his name, residence, age, etc., he stated that he was called by telephone about 11:30 A.M. 17. March 17, and went immediately to the Oberholtzer home, and there found Madge Oberholtzer lying on a bed in a state of shock, pale, body cold, rapid pulse, that her clothing was disheveled, her dress open in front exposing bruises on her chest; that he made a superficial examination through her clothing to determine possible broken bones (having been informed that she had been 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 answered (over the objections of appellant) that, "She said that 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 then again related his superficial examination, and pressed her for an answer as to how it happened. At this point appellant interposed an objection on the ground that it had not been shown that the deceased was in extremis, or that she thought that she was going to die soon, which objection was overruled. The doctor then proceeded to relate in answer to the question a narration, as told to him by Miss Oberholtzer, of all the events occurring from the time she left home until she returned. This narration was in substance the same as the written declaration of Miss Madge Oberholtzer, which will in substance hereinafter be set out. Mrs. Eunice Schultz, who was a roomer at the Oberholtzer home, had previously testified, that, the man who brought Madge home told her that "She was hurt in an automobile accident . . . he did not think any bones were broken." That she saw the bruises on various parts of Madge's body which she described. That "her clothing was mussed up and she was very dirty . . ., that she looked very white around the mouth and groaned" and that Madge said to her, "Oh Mrs. Schultz, I am dying." The rule of law governing the admission in evidence of unsworn statements as dying declarations is very clearly and definitely settled in Indiana and appellant has set it out very fully and concisely in his brief. See McKee v. State (1926), 198 Ind. 590,154 N.E. 372; 21 Cyc. 976, 977; Watson v. State (1878), 63 Ind. 548;Morgan v. State (1869), 31 Ind. 193; Jones v. State (1880), 71 Ind. 66.

The trial court had, not only the statements of Miss Oberholtzer that she was dying, and that she could not get well, but the conduct, manner, symptoms and condition of Miss Oberholtzer at the time she made the statements were detailed to the court. It was said in the case of Williams v. State (1925), 196 Ind. 84, 88, 147 N.E. 153, that, "The competency of this evidence (meaning dying declaration) was a question for the trial court to be determined by the proof relative to the declarant's state of mind at the time he made the declarations. The proof preceding the admission of such declarations must convince the trial judge that they were uttered under a sense of impending death without hope of recovery, or that the declarant fully believed that death was so near that all motives to falsehood were superseded by the strongest motives to strict veracity. . . . Proof of the facts thus to be settled by the judge is not limited to the declarant's statements alone, "but it may be inferred from the general statements, conduct, manner, symptoms and condition of the declarant, which flow as the reasonable and natural results from the extent and character of his wound, or the state of his illness." In the case of Hill v.State (1924), 194 Ind. 688, 141 N.E. 639, the court said: "The admissibility of these statements was first for the trial court to determine, and that decision will not be disturbed unless it is manifest that the facts did not warrant such ruling," Gipe v. State (1905),165 Ind. 433, 75 N.E. 881, 1 L.R.A. (N.S.) 419, 112 Am. St. Rep. 238. We can not say that the admission of Dr. Kingsbury's testimony was manifestly erroneous.

Appellant's points 9, 10, 11, 12, 13, 14 and 15, relate to admission of evidence over his objections. We have examined each of these objections, and find that they either relate to portions of what was admitted in evidence as a dying declaration, or evidence relating to the crime charged in count four of the indictment, on which appellant was acquitted. We find no reversible error in any of the court's rulings under these points. Appellant's points 17 to 43, inclusive, also relate to the court's rulings in the admission or rejection of certain evidence. Most of these objections are very technical, or relate to counts other than count one under which appellant was convicted. We find no reversible error in the action taken by the court and we are of the opinion that appellant suffered no substantial injury thereby.

Appellant's 16th point is based upon his motion to withdraw the submission and discharge the jury on account of certain remarks made by the trial judge in ruling upon the admissibility 18. in evidence, of a conversation had between the witness and his daughter (the deceased) out of the presence of appellant, which conversation was sought to be introduced as a dying declaration. The appellant interposed an objection to the question put by the state, "Now Mr. Oberholtzer, at that time, I wish you would tell the jury what she told you happened on this trip" for the reason that it was not shown that Madge Oberholtzer at the time labored under the belief that there was to be immediate dissolution, nor that she believed that her end was near, etc., and also that, dying declarations are not competent in case of suicide. The remarks of the court objected to, was addressed to the last part of the objection and was a statement of the law as the court understood it, when dying declarations were admissable, when the defendant made the contention that the deceased committed suicide, and the remarks of the court were meant to answer appellant's contention that Madge Oberholtzer committed suicide and therefore the evidence was not admissable. We are persuaded that the jury fully understood that the court was ruling on the admissibility of evidence and not instructing them in the law, which they should apply when deliberating upon the guilt or innocence of appellant in the jury room after the case was finally submitted to them. We can not say that we approve of the practice generally of either arguments by counsel on questions of the admissibility of evidence or of the court discussing the law, relating thereto. We think it better practice, that the court have the jury retire during the discussion and ruling.

Appellant by his motion for a new trial challenges the verdict raises the same question as he did in his motion to quash. We have heretofore set out our views on these questions and we need not say anything further on this subject.

Appellant by his motion for a new trial challenge the sufficiency of the evidence to support the verdict and this question necessitates a statement of the facts proven at 19. the trial. In substance they are as follows:

The victim of this homicide is Miss Madge Oberholtzer, who was a resident of the City of Indianapolis and lived with her father and mother at 5802 University Avenue, Irvington. She was twenty-eight years of age; weighed about 140 pounds and had always been in good health; was educated in the public primary and high school and Butler college. Just prior to the time of the commission of the alleged acts in the indictment of appellant upon her, she was employed by the State Superintendent of Public Instruction as manager of the Young Peoples' Reading Circle.

Miss Oberholtzer was introduced to appellant by her escort at a banquet in the City of Indianapolis, January 12th, 1925. This introduction was their first meeting.

Appellant resided at ____ ____ Street, Irvington, City of Indianapolis, at the time of the beginning of the actions disclosed by the evidence. His home was but a short distance, some two or three city blocks, from the home of the Oberholtzers. After the meeting of appellant and Miss Oberholtzer at the banquet, he invited her several times for a "date." She gave him no definite answer. She later consented to his insistent invitation to take dinner with him at a hotel in Indianapolis, and, upon the occasion, he came to her home for her with his automobile and they dined together. Thereafter, appellant called her several times by telephone, and once again she had dinner with him at the same hotel, at which another person was a third member of the party. Subsequent to the second dinner, Miss Oberholtzer was at Stephenson's home at a party with several prominent people, where both ladies and gentlemen were guests. The two principal actors to this tragedy did not see each other again until late Sunday evening, March 15th, 1925. The afternoon of that Sunday, she had been away from home and returned between nine and ten o'clock in the evening. Upon her return, her mother, Mrs. Matilda Oberholtzer, informed her that a telephone message came for her, which the mother delivered to her daughter, which was a piece of paper upon which there was the telephone number Irvington 0492. Miss Oberholtzer called the number and Stephenson answered the call. He asked her to come to his home for he wished to see her about something very important to herself and that he was leaving for Chicago and it was necessary that he see her before he departed. In the telephone conversation, Stephenson said to Miss Oberholtzer that he could not leave, but that he would send someone for her. Very soon thereafter, a Mr. Gentry, whom Miss Oberholtzer had never seen, came for her and said he was from Stephensons. She walked with Gentry to Stephenson's home. When they arrived, they went inside the home and there saw Stephenson. He had been drinking. Stephenson's chauffeur, whom he called "Shorty," was there also. As soon as she got inside the house, she grew very much afraid when she learned that there was no other woman about and that Stephenson's housekeeper was away, or at least not to be seen. Immediately upon her arrival at Stephenson's home, he, with the other men, took her into the kitchen and some kind of drinks were produced. At this time another man by the name of Klinck came in by the back door. She said she did not want to drink, but Stephenson and the other men forced her to drink and she submitted because she was afraid to refuse, and drank three small glasses of the liquor produced. The drinks made her very ill and dazed and the effects of them caused her to vomit. Stephenson then said to her, "I want you to go to Chicago with me." She said she couldn't and would not; and that she was much terrified and did not know what to do and said that she wanted to go home. Stephenson replied to her, "No, you can not go home. Oh yes! you are going with me to Chicago. I love you more than any woman I have ever known." She then tried to call her home by telephone, but could get no answer. Later, when she again tried to get to the telephone, they prevented her from so doing.

The men then took her up to Stephenson's room and Stephenson opened a dresser drawer, which was filled with revolvers. He told each of the men to take one and he selected a pearl handled revolver and had "Shorty" load it. Stephenson then said first to her that they were going to drive through to Chicago. She told him that she would not go. Then Gentry called a hotel in Indianapolis, at Stephenson's order, and secured reservations in a drawing room for two persons. Then all of the men took her to the automobile at the rear of Stephensons's yard and they started the trip. She thought they were bound for Chicago, but did not know. She begged them to drive past home so that she might get her hat on a ruse that if she did get inside her home she would be safe from them. Before they left Stephenson's house, Stephenson said to Klinck, "You get in touch with," an officer, "right away and tell him we are going to Chicago on a business deal to make money for all of us." Then they started. Klinck was not one of the party in the automobile. Stephenson and Gentry sat in the car all of the time with her until they got to the train. On the trip from Stephenson's home to the railway station in Indianapolis, the automobile was stopped at the hotel and there "Shorty" went into the hotel and came back. While at this stop, Stephenson and Gentry refused to let her out of the automobile. At this time she was in a dazed and terrified condition and feared that her life would be taken by Stephenson. He told her that he was the law in Indiana and said to Gentry, "I think I am pretty smart to have gotten her."

Stephenson, Gentry and she boarded the train, where all three went at once into the compartment or drawing room. She was in such condition that she could not remember all that happened after that, but she did remember that Gentry got into the top berth of the compartment. Stephenson then took hold of the bottom of her dress and pulled it over her head, against her wishes, and she tried to fight him away, but was weak and unsteady. Then Stephenson took hold of her two hands and held her, but she did not have strength to get away, because what she had drunk was affecting her. Then Stephenson took off all her clothes and pushed her into the lower berth. After the train started, Stephenson got into the berth with her and attacked her, and, in so doing, he held her so she couldn't move and did not know and did not remember all that happened. She did remember that he chewed her all over her body; bit her neck and face; chewed her tongue; chewed her breasts until they bled and chewed her back, her legs and her ankles and mutilated her all over her body. She remembered of hearing a buzz early in the morning and the porter calling them to get up for Hammond. Then Gentry shook her and said it was time to get up and that they were to leave the train at Hammond, Indiana. At this time, she became more conscious, and, before they left the train, Stephenson was flourishing his revolver. Then she asked him to shoot her. He held the revolver against her side and she said to him again to kill her, but he put the gun away in his grip. During the night on the train, she heard no sound from Gentry. After the car porter called them, Stephenson and Gentry helped her to dress; then the two men dressed and took her off the train at Hammond. After leaving the train, she was able to walk with the two men to the Indiana hotel. During the night she begged Stephenson to send a telegram to her mother. At the Indiana hotel, Stephenson registered for himself and wife under the name of Mr. and Mrs. W.B. Morgan, address, Franklin, and were assigned to room 416. Gentry then registered under the name of Earl Gentry, address Indianapolis, Indiana, and was assigned to room number 417. The time they reached the hotel was about 6:30 o'clock in the morning. In the hotel lobby, when they entered, were two colored bell boys and two colored girls. The three, as guests of the hotel, were taken up the elevator and shown to their rooms. During this time Miss Oberholtzer continued begging Stephenson to send a telegram to her mother. Stephenson then made her write a telegram and told her what to say in it. After the telegram was written, Gentry took it and said he would send it immediately. Stephenson then layed down on the bed and slept, while Gentry put hot towels and witch hazel on her head and bathed her body to relieve her suffering.

Breakfast was served in their room. Stephenson ate grapefruit, coffee, sausage and buttered toast. She drank some coffee, but ate nothing. At this time, "Shorty" came in the room. He said to Stephenson that he had been delayed getting them because he could not find the hotel where they were guests in Hammond. Then she asked Stephenson to give her some money, for she had none, so that she might purchase herself a hat. Stephenson told "Shorty" to give her money and he gave her $15.00 and took her out in the automobile. "Shorty" waited for her while she went into a store and purchased a hat, for which she paid $12.50. When she returned to the car, she asked "Shorty" to drive her to a drug store so that she might purchase some rouge. He then drove the car to a drug store, where she purchased a box of bichloride of mercury tablets, put them in her coat pocket and returned with "Shorty" in the automobile to the hotel. During the morning at the hotel, the men got more liquor at Stephenson's direction. Stephenson said they were all going to drive on to Chicago and made her write the telegram to her mother saying that they were going to Chicago. This was the telegram that Gentry took.

After she and "Shorty" returned to the hotel, she said to Stephenson to let her go into room 417, which was the room assigned to Gentry, so that she might lie down and rest. Stephenson replied, "Oh no, you are not going there, you are going to lie right down here by me." She then waited awhile and until she thought Stephenson was asleep and then went into room 417 and Gentry remained in room 416 with Stephenson. There was no glass in room 417, so she procured a glass from room 416, laid out eighteen of the bichloride of mercury tablets and at once took six of them, which was about ten o'clock in the morning of Monday, March 16th, 1925. She only took six of the tablets because they burnt her so. Earlier in the morning she had taken Stephenson's revolver and thought to kill herself in Stephenson's presence while he was asleep. It was then she decided to try and get poison and take it in order to save her mother from disgrace. She knew it would take longer for the mercury tablets to kill her. After she had taken the tablets, she lay down on the bed and became very ill. It was nearly four o'clock in the afternoon of Monday that "Shorty" came into the room and sat down to talk to her. He said to her that she looked ill and asked her what was wrong, and she replied, "Nothing." He asked her where she had pain and she replied that pain was all over her. He then said to her that she could not have pain without cause. When she asked him, "Can you keep a secret?" He answered, "Yes." She said, "I believe you can." Then she told him she had taken poison, but that he should not tell Stephenson. She had been vomiting blood all day. When she said to him that she had taken poison, "Shorty" turned pale and said that he wanted to take a walk. He left the room and, in a few minutes, Stephenson, Gentry and "Shorty" came into the room very much excited. Stephenson then said, "What have you done?" She answered, "I asked "Shorty" not to tell." Stephenson then ordered a quart of milk and made her drink it and then she said to him and to the others that she had taken six bichloride of mercury tablets, and said, "If you don't believe it, there is evidence on the floor and in the cuspidor." Stephenson then emptied the cuspidor, which was half full of clotted blood, into the bathtub and saw some of the tablets. She then asked Stephenson what he intended to do, to which he replied, "We will take you to a hospital and you can register as my wife. Your stomach will have to be pumped out." He said that she could tell them at the hospital that she had gotten mercury tablets through a mistake instead of aspirin. To Stephenson's suggestion, she refused to comply as his wife. Then it was that Stephenson said that they would take her home. She then said to Stephenson that she would not go home, but would stay at the hotel, and asked them to leave her and go about their own business or to permit her to register at another hotel under her own name. Stephenson then said, "We will do nothing of the kind. We will take you home," and that the best way out of it was for them to go to Crown Point and there she marry him, to which suggestion, Gentry said he agreed it was the thing to do. She refused. Stephenson then snapped his fingers and instructed "Shorty" to pack the grips. They then departed from the hotel. Stephenson assisted her down the stairs. Before leaving she asked "Shorty" to telephone to her mother. Stephenson said that he had already called her. She asked what her mother said and Stephenson answered, that, she said it would be all right if her daughter did not come home that night.

"Shorty" checked out of the hotel for the three and they then put her in the back seat of the automobile with Stephenson and the luggage and started for home. Her mind was in a daze and she was in terrible agony. After they had proceeded in the automobile a short distance, Stephenson ordered "Shorty" to take the auto license plates off the car, which "Shorty" did, and Stephenson then directed him to say, if questioned, that they had parked in the last town where the auto plates had been stolen. On the journey back to Indianapolis she screamed for a doctor, and said she wanted a hypodermic to relieve the pain, but the men refused to stop. She begged Stephenson to leave her along the road some place, that someone would stop and take care of her, and said to Stephenson, that he was even then more cruel to her than he had been the night before. He promised to stop at the next town, but did not. Just before reaching a town he would say to "Shorty," "Drive fast, but don't get pinched." She vomited in the car all over the back seat and the luggage. Stephenson did nothing to make her comfortable upon the trip. He said to Gentry, "This takes guts to do this, Gentry. She is dying"; and that he said to Gentry he had been in a worse mess than this before and got out of it. Stephenson and Gentry drank liquor during the entire trip. Stephenson said also that he had power and that he had made a quarter of a million dollars and, that his word was law.

Upon reaching Indianapolis, they drove straight to Stephenson's house by way of 38th street and Emerson Avenue in Indianapolis. When the car reached Stephenson's garage, Stephenson said, "There is someone at the front door of the house," and told "Shorty" to go and see who it was. "Shorty" returned and informed Stephenson that it was Miss Oberholtzer's mother. Then Stephenson said, "You will stay right here until you marry me." One of the three men then carried her upstairs into the loft above the garage. Stephenson did nothing to relieve her pain while they left her in the garage until she was carried to her home about noon Tuesday, March 17th, 1925. A big man, as she says, Mr. Klinck by name, shook her and awakened her and said to her, that she must go home. She asked him where Stephenson was, and he told her he did not know. She remembered here that Stephenson had told her to tell everyone that she had been in an automobile accident and then said to her, "You must forget this, what is done has been done. I am the law and the power." He repeated to her several times that his word was law. On account of her agony and suffering, she begged Klinck to take her home in Stephenson's cadillac car. He said he would order a taxi, but finally said he would take her in Stephenson's car. Klinck then dressed her and carried her downstairs from the loft and put her in the back seat of the automobile and drove to the home of her mother. She asked him to drive in the driveway, which he did, and then carried her into the house and upstairs and placed her on her bed.

At the time she was returned to her home by Klinck, her mother was away from home. There was in the house, at the time she returned, Mrs. Schultz, who roomed at the Oberholtzer home with her eldest son George. When Klinck carried Miss Oberholtzer into the house, Mrs. Schultz was preparing lunch in the kitchen for her son and heard a terrible groaning at the front door and then went to the dining room and saw Miss Oberholtzer being carried in. She then went to the stairway and saw her carried upstairs by a large man, whose name she did not know. When he came downstairs alone, she asked, "Is Madge hurt?" He replied, "Yes," and said she was hurt in an automobile accident. Mrs. Schultz asked him how badly and he replied, he didn't think any bones were broken. Then, she said to him, "I will get a doctor quickly," and he said, "Yes." Then Mrs. Schultz asked him who he was and he replied, "My name is Johnson from Kokomo," and said, "I must hurry," and hurrying on, kept his face toward the door. Mrs. Schultz got a good look at his face as he came down the stairway and recognized him and identified him in the courtroom at the trial of appellant. This man, who gave his name as Johnson, was Earl Klinck.

Upon Klinck's departure from the house, Mrs. Schultz went up to see Miss Oberholtzer, whom she called Madge. The door to her room was closed and Mrs. Schultz knocked and heard Madge moaning, so she opened the door and went in and saw Madge on the bed. When she went in, Madge was groaning and was pale and could hardly speak or answer. Mrs. Schultz noted the bruises on Madge. The one on her right cheek was a dented wound of dark color; and on the left side of her chest were similar wounds, which were deeper and darker in color. The wound on her breast and the wound Mrs. Schultz noted were similar in shape and appearance. She noted that Madge had bruises across her stomach, on her limbs and ankles, which bruises were very dark in color in some places. The skin on her left breast was open. Her clothing, a black velvet dress and black shoes, were very mussed up and very dirty. Her coat had dropped off there in her room. She had on no hat. She looked very white around her mouth and groaned, "Oh!" and "Dear mother." She then said, "Oh, Mrs. Schultz, I am dying."

Miss Oberholtzer told Mrs. Schultz to call Doctor Kingsbury, which she did, and he arrived in less than an hour. Mrs. Oberholtzer, her mother, returned to her home about two o'clock in the afternoon. Upon Dr. Kingsbury's arrival at the home, he went immediately to see Madge and found her lying on her bed. He said she was in a state of shock. Her clothing was in a disheveled state; her face was pale; her body was cold and her pulse rapid. Her dress lay open in the front on her breast exposing bruised areas over her chest, with two or three lacerations, little cuts on the left chest; her right cheek had a bruised elevated area, dark in color, egg-shaped in formation. He had been informed that she had been injured in an automobile accident and made a superficial examination through her clothing to determine whether bones were broken. After such examination, he had a conversation with her in which she told him she did not expect to get well and that she wanted to die. He told her that he found no bones were broken and asked her how she happened to be in this condition, to which she replied, "When I get better, I will tell you the whole story." Because of the state of shock and the condition, the doctor did not know how severely she was hurt or injured and pressed her for a reply. She then related to him the story, as related above, of the telephone call, her being escorted to Stephenson's home; of the drinking; of the ride to Hammond on the train; of her purchase of a hat and the poison and of her taking of the poison; and of the return trip to Indianapolis; of her pain and agony on the trip, how she begged Stephenson to procure a physician on the return and of his refusal to do so; of the arrival at Indianapolis about midnight and of her being taken to Stephenson's garage, where she was held a captive until 11:30 A.M. the following morning, and of her being taken home by Klinck, who told Mrs. Schultz that she had been injured in an automobile accident, and when she heard Klinck say this to Mrs. Schultz, she, Madge, raised upon her elbow and called, "He lies"; how that she had begged Stephenson, during the night in the garage after the return, to call a physician for her and that he did not grant her request.

After Dr. Kingsbury had heard her story, as thus related, he made a careful physical examination after a Miss Spratley, a nurse, had been called to care for her, and after Miss Spratly had removed the patient's clothes and cleaned her. As a result of this careful physical examination, Dr. Kingsbury found that Miss Oberholtzer had numerous bruised areas over her body; on her right cheek; over the chest; with lacerations on the left chest; a bruise as large as a dinner plate on the left hip and buttock; bruised and torn tissues down at the point of the vagina; a bruised discoloration, bruised areas down over her limbs and ankles; body very cold and pulse rapid. The doctor then had the patient catheterized and obtained some urine for examination, which he took with him to his office. He then washed her stomach and obtained mucus and blood therefrom. Upon examination, her urine showed a large collection of albumin, casts and blood cells, which were all evidence of acute kidney inflammation; that in his opinion, examination of the bruises and lacerations, the ones on the left breast and right cheek were inflicted by teeth, but he could form no opinion of the cause of the wounds in the vagina. He attended the patient until her death, April 14th, 1925, in Marion County, Indiana, during which time, he attended the patient by calls three to five times each day and called in other medical assistance. The lacerations on the left breast became infected, but had healed at the time of her death, leaving scars. The nature of the infection was the ordinary pus producer, which, ordinarily, was responsible for a pus infection, and was such an infection as might result from a bite.

Dr. Kingsbury did not have any further conversation with her concerning any other matter than her progress or the type of medication, except on March 28th in the early evening, when he advised her of her condition and outlook and, when no one else was present, he told her that she had no chance of recovery and no change to get well, and that she was going to die, and told her why, which was the result of the things that had happened to her, the shock, the loss of food, loss of rest, and the action of the poison on her system and her lack of early treatment, and that the blood test, made that afternoon or the day before, was very much worse; and that her progress was unfavorable and that he was thus forced to inform her that she had no chance of recovery. She replied, "That is all right doctor, I am ready to die. I understand you doctor. I believe you and I am ready to die."

The other physicians, who were called in the case by Dr. Kingsbury, were Dr. H.O. Mertz of Indianapolis, who was a recognized authority on treatment of kidney disorders; Dr. John Warvel of Indianapolis, pathologist at the Methodist Hospital for some time; Dr. J.A. McDonald of Indianapolis, as a consulting physician; Dr. B.G. Jackson, of Indianapolis, specialist.

The statement of Dr. Kingsbury in evidence is that the chances, both for prolonging the victim's life and for her getting well, would have been better had she had treatment earlier, or within four or five hours after taking the poison; the delay caused by the automobile ride from Hammond to Indianapolis and the subsequent detention certainly tended to lessen her chances for recovery, or to shorten her life.

An attorney, a friend of the Oberholtzer family, visited at the Oberholtzer home frequently from March 17th, the time of Miss Oberholtzer's return from Hammond, to April 14th, 1925, the day on which she died. Miss Oberholtzer told the attorney the story of the incidents related and informed him that she knew she had no chance for recovery and was ready to die. From the statements so made by her to him, he prepared and had transcribed by typewriter a dying statement, which was read to her and in which she made corrections, and which was afterwards again prepared and read to her and approved and she signed the statement, saying therein that she had no hope of recovery; and that she believed and knew that she was about to die and that she took an oath before a Notary Public of the truth of the statements made in the dying declaration.

The testimony of the physicians, who were in attendance upon Miss Oberholtzer as their patient during portions of the time after her return from Hammond until her death, and the consulting physicians, by their testimony, showed that the minimum fatal dose of bichloride of mercury is two to three grains, but larger doses are not necessarily more apt to be fatal, but the danger rests upon the amount of poison absorbed and retained; the form in which taken, whether tablets or powder; the promptness of vomiting or purging, efficiency of treatment, the fullness or emptiness of the stomach at the time the poison is taken by way of the mouth. Medical history shows that recoveries have occurred when as much as 500 grains were swallowed; the per cent of fatalities since A.D. 1910 is about 25 per cent and as low as 6 per cent in one hospital. The average time for the life of the patient after having taken the poison in a fatal dose is from five to twelve days. Medical history shows that some patients have died within a few hours after taking the poison and the longest reported case in medical history is that the patient died the 25th day after taking the poison, and that all reported cases of patients who lived beyond 25 days after taking the poison had recovered; that in a severe case, where the patient survived 29 to 30 days, as did Miss Oberholtzer, after taking the poison, and died, the consensus of opinion was stated that some other factor played a part in causing the death. The action of this poison, if the patient lives more than a few days, expresses itself in the kidneys and causes an acute nephritis of the kidneys to such an extent that there is a failure to secrete urine by those organs. Nephrities, caused by the poison if the patient lives beyond the 12th day, diminishes and the kidneys begin a process of repair and resumption of their function, and that medical history shows that it requires five to twelve days for a human being to die if the kidneys are completely out of function. The report of the post-mortem upon Miss Oberholtzer in evidence showed that the physician made such examination found an acute nephritis, the effect of bichloride of mercury on the kidney, degeneration of other organs in the liver and heart muscle, irritation of gastro-intestinal tract, abscess on one of her lungs, recently healed injuries on the surface of her body, four or five on the surface of her chest, one of which showed evidence of previous supporation, which was caused by the entrance of bacteria in that wound. Portions of the liver and kidneys were subjected to examination by Dr. Harger of Indiana University School of Medicine, the result of which, according to his evidence, showed that the injury to the kidney by the poison, which injury was termed nephritis, had almost healed and that the kidney tissues were in a state of advanced repair; the abscess in the lung contained pus or pus-forming germs which are carried by the blood stream by which circulation these germs coming from an infected wound, cause blood poisoning or pyemia; the symptoms of such pyemia are weakness, a rapid pulse and fever. The post-mortem examination showed that the lacerated and recently-healed infection over one of her breasts was the only one found from which pyemia could probably have resulted. The injury made to her breast could have been infected by human teeth, and wounds so made are apt to be infected by bacteria on the teeth and the mouth of the person biting, or such bacteria may be on the skin which are carried in beneath the skin by the injury. The opinion was that the infection in the lungs came from the infected area on the chest, and that the kidneys were also infected by the same bacteria, which, on account of the poisoning, would be less able to resist infection by the pus germs. The abscess in the lung, the infection in the blood stream and the infection in the kidney all tended to prevent recovery and that it was highly probable that such infection contributed to the death of Miss Oberholtzer, but that she would have recovered from the effects of the mercurial poisoning had she not been so infected by the pus germs coming from the wound on her chest, because the kidneys had already accomplished a large amount of repair sufficient to carry on their function. The opinion was that the wounds made on her body could not have been caused in any manner by mercuric chloride.

The result of the post-mortem showed no effects of influenza in her lungs. There was no condition in the esophagus, mouth, stomach, intestines or liver due to mercuric chloride, which could of itself have resulted in death. It was stated that taking into consideration the facts given in evidence of the taking of possession of Miss Oberholtzer by appellant; her trip to Hammond; the taking of the poison; the return home and the time intervening from then until her death, a delay of twenty-four to twenty-six hours in administering remedies for mercuric chloride poisoning, materially reduced her chances of recovery.

A hypothetical question was asked of some of the physicians who had attended Miss Oberholtzer, the statements of which were the facts which had been introduced in evidence, with the addition of the following, that bichloride of mercury tablets, which she purchased and had taken, were, "Perhaps 7 1/2 or 7/38 grains each." The final sentence of the hypothetical question was, "Upon this hypothesis, Doctor, state what, in your opinion, was the cause of her death?" One doctor answered, "She died from an acute infection, superimposed upon an acute nephritis, in my opinion." And answering further as to what was the nature of the acute infection, in his answer was, "that she had Staphylococci (pus) infection in her kidney." And answered further, in reference to mercuric nephritis that delay in medical treatment affected her chance of recovery in that it would allow more absorption of the drug and result in greater damage to the kidney. One of the other physicians testified, "The cause of her death, in my opinion, was some secondary complication superimposed upon nephritis." And further, that but for this infection, superimposed upon the mercuric nephritis, "I believe she would have recovered," and further that the delay of twenty-four to twenty-six hours in giving medical and nursing attention greatly increased chances of fatality.

Appellant was arrested by a party of four officers at his room in an hotel in Indianapolis. One of the officers knocked at the door of appellant's room, and, upon appellant opening the door, one of the officers asked him, "If Mr. Stephenson was in." Appellant answered, "No, Mr. Stephenson is not in, but I am his secretary, Mr. Butler." Upon further questioning, the man who opened the door and who said he was Mr. Butler, admitted that he was Mr. Stephenson, the appellant. The hotel clerks, the maid and the bell boys of the Indiana Hotel, Hammond, and the hotel clerk of the Washington Hotel, Indianapolis, where appellant had lodging, and where he was arrested, were witnesses, and whose testimony was corroborative of the facts in relation to what happened in the two hotels as narrated. The pullman conductor and pullman porter of the car in which appellant and the others made the journey to Hammond testified. The conductor identified Earl Klinck as the person from whom he took up three tickets in the Union Station in Indianapolis. He testified of the three, including appellant and Miss Oberholtzer, occupying the drawing-room in the pullman car; that he heard the woman vomiting in the toilet room, which is connected with the drawing-room; that appellant ordered the other men to wet a towel in cold water to bathe her face; that, while in the room preparing the beds, appellant showed his revolver to the pullman porter, and identified the taller one of the two men in the courtroom, who occupied the drawing-room that trip, as Gentry, who was indicted with this appellant.

Appellant very earnestly argues that the evidence does not show appellant guilty of murder. He points out in his brief that after they reached the hotel, Madge Oberholtzer left the hotel and purchased a hat and the poison, and voluntarily returned to his room, and at the time she took the poison she was in an adjoining room to him, and that she swallowed the poison without his knowledge, and at a time when he was not present. From these facts he contends that she took her life by committing suicide; that her own act in taking the poison was an intervening responsible agent which broke the causal connection between his acts and the death; that his acts were not the proximate cause of her death, but the taking of the poison was the proximate cause of death. In support of his contention he cites State v.Preslar (1856), 48 N.C. 421; Reg v. Donovan (1850), 4 Cox 399; Gipe v. State, supra; Treadwell v. State (1884), 16 Tex. App. 560[16 Tex.Crim. 560]; Bush v. Com., supra; State v. Shelledy (1859), 8 Iowa 477; Hendrickson v. Com. (1887), 85 Ky. 281, 3 S.W. 166, 7 Am. St. Rep. 596, and other cases from other jurisdictions. In the case of State v. Preslar, supra, the defendant in the night time fought with his wife and she left to go to the home of her father. When she reached a point about two hundred yards from her father's home, she, for some reason, did not want to go in the house till morning, laid down on a bed cover, which she had wrapped around her, till daylight. The weather was cold and the next morning she could not walk, but made herself known. She after wards died. The court held that the wife without necessity exposed herself and the defendant was not guilty. In the case of Reg. v. Donovan,supra, the defendant struck his wife, and she went to the window to call for help and fell out. Defendant was charged with throwing his wife out of the window with intent to kill. The court held that the vidence must show that by his treatment he intended to make her jump out of the window. In the case ofGipe v. State, supra, the defendant broke into a house with intent to rob. The deceased ran out of the house and jumped into a well and remained there and died from exposure. The indictment charged death by violence, to wit, beating and striking. The court held that the evidence did not show the killing was by force and violence as charged, and did not follow the allegations in the indictment, and for that reason the cause was reversed. InTreadwell v. State, supra, the defendant shot the deceased, who lived from November till the following September. A few weeks before his death he had heart attack and convulsions. The court found that he died from heart attacks and the wounds inflicted by the defendant had nothing to do with the death. In the case ofState v. Shelledy, supra, the defendant, with others, went in a body to the home of one W. armed with revolvers, and forcibly took possession of W. and bound his arms so as to render him helpless, and in the presence of W. avowed their purpose to kill W. and placed him in a hack and started to the timber with him, and when on the banks of the Iowa river he leaped from the wagon into the water, and they permitted him to drown, while standing by, and made no effort to rescue the said W. where by reasonable effort they might have done so. The court held that the defendant would be guilty of murder under these circumstances. In Bush v. Com., supra, defendant wounded one V. who was taken to the hospital and treated by a physician who communicated to her scarlet fever from which disease she died. The court said in that case, "If the wound is not dangerous and when in the natural course of events a new and intervening cause appears and causes the death, there is no guilt. If death was not connected with the wound in the regular chain of cause and consequence there ought not to be any responsibility. If a new and wholly independent instrumentality interposed and produced death the wound is not the proximate cause." The principal laid down in the last case is well supported by decided cases and text book writers, and we agree that the reasoning is sound and that it was properly applied in those cases. It is quite clear that in the Bush case there was no causal connection between the wound inflicted and the death. But we do not believe that the rules stated in the above case are controlling here. In the recent case of Wilder v. Russell Library Company, supra, the question of causal connection was discussed. In that case the commissioner awarded compensation to the claimant as a dependent of the deceased. The deceased had been librarian at the library of respondent employer, and as such was under the supervision of its trustees, in full charge of the library. She was very conscientious in her work, temperamentally zealous for the good of the library, working many hours overtime at her home evenings. She also engaged in outside activities which was occasioned by her position as librarian. The various work which she engaged in is set out in the opinion of the court which we will not take the time or space to set out here. Finally her health broke, which was followed by a nervous breakdown and while mentally irresponsible committed suicide. The court found that the worry, anxiety and excessive nervous and mental activity in connection with the library work were all contributing factors in the ultimate mental breakdown. Here physical, mental and nervous disorder were all attributable to that work and traceable to her employment. The court said: "Before we can make a valid award the trier must determine that there was a direct causal connection between the injury, whether it be the result of the accident or disease, and the employment. . . . Was the employment a proximate cause of the disablement? . . ." The court held that it was and affirmed the award. See Wharton on Homicide, § 374; Rex v. Beech, supra;Wilder v. Russell Library Co., supra. In the case of Rex v.Beech, supra, the prosecutrix was the village nurse and lived alone. At 11:45 P.M. on an evening in November the appellant came to her house when she was in bed. He entered the house by breaking a window and went upstairs to the bedroom occupied by the prosecutrix. The door was locked and the appellant threatened to break it open if the prosecutrix would not let him in. She refused and the appellant then tried to burst open the door. The prosecutrix called out, that if he got in he would not find her in the room, and as the appellant continued his attack upon the door the prosecutrix jumped out of the window sustaining injuries. The prosecutrix also testified that the appellant had attempted to interfere with her on a previous occasion when she had threatened to take poison if he touched her. The court approved the proposition as stated by the lower court as follows: "Whether the conduct of the prisoner amounted to a threat of causing injury to the young woman; was the act of jumping the natural consequence of the conduct of the prisoner and was the grievous bodily harm the result of the conduct of the prisoner." The court held that if these questions were answered in the affirmative he would be guilty. In Rex v. Valade (Que.), 22 Rev. De. Jur. 524, 26 Can. Cr. Cas. 233, where the accused induced a young girl under the age of consent to go along 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. The accused was held guilty of murder. Bishop, in his work on Criminal Law, Vol. 2, 9th Edition, page 484, says, "When suicide follows a wound inflicted by the defendant his act is homicidal, if deceased was rendered irresponsible by the wound and as a natural result of it." See also People v. Lewis (1899), 124 Cal. 551, 57 P. 470, 45 L.R.A. 783. We do not understand that the rule laid down by Bishop, supra, that the wound which renders the deceased mentally irresponsible is necessarily limited to a physical wound. We should think the same rule would apply if a defendant engaged in the commission of a felony such as rape or attempted rape and inflicts upon his victim both physical and mental injuries, the natural and probable result of which would render the deceased mentally irresponsible and suicide followed, we think he would be guilty of murder. In the case at bar appellant is charged with having caused the death of Madge Oberholtzer while engaged in the crime of attempted rape. The evidence shows that appellant together with Earl Gentry and the deceased left their compartment on the train and went to a hotel about a block from the depot, and there appellant registered as husband and wife, and immediately went to the room assigned to them. This change from their room on the train to a room in the hotel is of no consequence, for appellant's control and domination over the deceased was absolute and complete in both cases. The evidence further shows that the deceased asked for money with which to purchase a hat, and it was supplied her by "Shorty," at the direction of appellant, and that she did leave the room and was taken by "Shorty" to a shop and purchased a hat and then, at her request, to a drug store where she purchased the bichloride of mercury tablets, and then she was taken back to the room in the hotel, where about 10:00 o'clock A.M. she swallowed the poison. Appellant argues that the deceased was a free agent on this trip to purchase a hat and, etc., and that she voluntarily returned to the room in the hotel. This was a question for the jury and the evidence would justify them in reaching a contrary conclusion. Appellant's chauffeur accompanied her on this trip, and the deceased had, before she left appellant's home in Indianapolis, attempted to get away and also made two unsuccessful attempts to use the telephone to call help. She was justified in concluding that any attempt she might make, while purchasing a hat or while in the drug store, to escape or secure assistance would be no more successful in Hammond than it was in Indianapolis. We think the evidence shows that the deceased was at all times from the time she was entrapped by the appellant at his home on the evening of March 15th till she was returned to her home two days later, in the custody and absolute control of appellant. Neither do we think the fact that the deceased took the poison some four hours after they left the drawing-room on the train or after the crime of attempted rape had been committed necessarily prevents it from being part of the attempted rape. Suppose they had not left the drawing-room on the train, and instead of the deceased taking poison she had secured possession of appellant's revolver and shot herself or thrown herself out of the window of the car and died from the fall. We can see no vital difference. At the very moment Madge Oberholtzer swallowed the poison she was subject to the passion, desire and will of appellant. She knew not what moment she would be subjected to the same demands that she was while in the drawing-room on the train. What would have prevented appellant from compelling her to submit to him at any moment? The same forces, the same impulses, that would impel her to shoot herself during the actual attack or throw herself out of the car window after the attack had ceased, was pressing and overwhelming her at the time she swallowed the poison. The evidence shows that she was so weak that she staggered as she left the elevator to go to the room in the hotel, and was assisted, by appellant and Gentry. That she was very ill so much so that she could not eat, all of which was the direct and proximate result of the treatment accorded her by appellant. We think the situation no different here than we find in the Beech case or the Valade case, supra. To say that there is no causal connection between the acts of appellant and the death of Madge Oberholtzer, and that the treatment accorded her by appellant had no causal connection with the death of Madge Oberholtzer would be a travesty on justice. The whole criminal program was so closely connected that we think it should be treated as one transaction, and should be governed by the same principles of law as was applied in the case of Rex v. Beech and Rex v. Valade, supra. We therefore conclude that the evidence was sufficient and justified the jury in finding that appellant by his acts and conduct rendered the deceased distracted and mentally irresponsible, and that such was the natural and probable consequence of such unlawful and criminal treatment, and that the appellant was guilty of murder in the second degree as charged in the first count of the indictment.

Appellant complains of Instruction No. 41 given by the court of its own motion. This instruction reads as follows: "The law presumes that one intends the natural and probable 20. 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 other person. If it is the natural and probable consequence of such act or acts, it is felonious homicide, otherwise it is not felonious homicide."

It may be questioned whether this instruction applies to count one or count two of the indictment, but even though it applies to count one we do not think it erroneous when read in the light of the allegations of count one and in the light of the evidence. The words "the suicide," as stated by appellant in his brief was used in this instruction in its common and usually accepted meaning, and the jury must have so understood the court to mean when he said "the suicide," it meant, the act of self-destruction, as shown by the evidence, and if they find 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. While it may be true that a person while in sound mind may deliberately and willfully take his own life, yet we cannot say that such an act is either the natural or probable thing for him to do. While on the other hand, it is the natural or at least the probable act of a person who has been rendered distracted and mentally irresponsible by the unlawful and criminal acts and conducts of another. We do not think the court erred in giving said instruction.

Instruction No. 43 given by the court of his own motion told the jury that, "One who inflicts an injury on another is deemed by the law to be guilty of homicide, if the injury 21. contributes mediately or immediately to the death of such other. The fact that other causes contribute to the death does not relieve the actor from responsibility. While it is true that a person can not be killed twice, yet it is equally true that two persons can contribute to cause the death of another in which case each will be responsible for such death."

We think the evidence justified the court in submitting the question to the jury, as there was evidence that the deceased died from the joint effect of the injuries inflicted on her, which through natural cause and effect contributed mediately to the death. We think the proposition of law stated in this instruction is well supported by authority. "The general rule, both of law and reason, is, that whenever a man contributes to a particular result, brought about, either by sole volition of another, or by such volition added to his own, he is to be held responsible for the result, the same as if his own unaided hand had produced it. The contribution, however, must be of such magnitude and so near the result that sustaining to it the relation of cause and effect, the law takes it within its cognizance. Now, these propositions conduct us to the doctrine, that whenever a blow is inflicted under circumstances to render the party inflicting it criminally responsible, if death follows, he will be holden for murder or manslaughter, though the person beaten would have died from other causes, or would not have died from this one, had not others operated with it; provided, that the blow really contributed mediately or immediately to the death as it actually took place in a degree sufficient for the law's notice." Bishop on Criminal Law, sec. 653; 2 Whart Am. Crim Law, sec. 941; Michie, Homicide, Vol. 1, p. 11, § 5; Bishop on Criminal Law, Vol. 2, § 639 (2), p. 483; Brill Enc. Crim. Law, Vol. 2, § 606; Kee v. State (1873), 28 Ark. 155; Dumas v. State (1909), 159 Ala. 42, 49 So. 224; Bishop v. State (1905), 73 Ark. 568, 84 S.W. 707;People v. Lewis, supra; People v. Williams (1915), 27 Cal.App. 297,149 P. 768.

Appellants requested instruction No. 26 was in effect, a directed verdict in favor of appellant on count one. There was no error in refusing this instruction.

Instructions Nos. 58, 68, 84, 96 and 111, tendered by appellant and refused by the court, had to do with the question of reasonable doubt. The jury was sufficiently advised on 22. this subject by instructions Nos. 16, 18, 19, and 20, given by the court, and for the court to read additional instructions on this question would have been only to repeat in substance what the court had already told the jury.

Instruction No. 78, requested by appellant and refused, in substance, told the jury that each juror must be convinced beyond a reasonable doubt of appellant's guilt before they were entitled under the law to return a verdict of guilty. This proposition was fully covered by the court's own instruction No. 17.

Appellant says the court erred in refusing his tendered instruction No. 83, which reads as follows: "The court instructs you that if you should find Madge Oberholtzer had been 23. assaulted and raped or had been assaulted and beaten with intent to rape, by the defendants, or either of them, and that said act by the defendants had already been completed and ended, and if you find that no attempt was being made by the defendants, or either of them, to repeat said act or acts, and if you further find that said Madge Oberholtzer under such circumstances voluntarily swallowed a fatal dose of bichloride of mercury poison with intent to take her own life, because she felt aggrieved on account of said prior acts of the defendants, or either of them, and that said bichloride of mercury caused her death, then you should not be warranted in finding the defendants guilty, and you should find them not guilty." This, in effect, is a preemptory instruction, and we think it entirely too narrow. All facts stated in this instruction, if true, would not entitle appellant to an acquittal. If this instruction be the law, then, a person would go acquit if he succeeded in completing his crime before the act of self-destruction was done, regardless as to what effect such acts might have upon the victim, or without regard to the question of natural or probable result of such criminal acts. We think this instruction was correctly refused.

Appellant's instructions Nos. 85, 99, 101, 116, 131, 132, 133, 145, 147, 148 and 149, were covered by instructions given and no error resulted from such refusal.

There was no reversible error in refusing appellant's tendered instructions Nos. 129, 135, 137, 138, and 140, as they are directed to the crime alleged in count four, and appellant 24. was convicted on count one, and in effect was found not guilty under count four.

We have examined all the appellant's alleged errors and find none that would justify a reversal of this cause. Judgment affirmed.

Treanor, J., dissents in part, concurs in part, dissents in conclusion. For opinion see post, p. 199.

Martin, J., dissents in part, concurs in part, dissents in conclusion. For opinion see post, p. 217.