50 Ind. 557 | Ind. | 1875
Indictment against Harrison Kingen and the appellant for the murder of Samuel Derry. The appellant pleaded not guilty, was tried by a jury, and convicted of manslaughter.
A venire de novo was moved for, and properly denied.
A motion for a new trial was then made, overruled, exception taken, judgment on the verdict, and appeal to this court.
The evidence is very voluminous, and much of it collateral to the main question. It is impracticable to set it out at length in this opinion, but the main facts may be fairly stated as follows:
The appellant was the wife of Harrison Kingen, and the sister of the deceased. The two families lived on the south side of a public highway, about one-quarter of a mile apart. Their premises joined; Kingen’s farm lay on the west, and Derry’s on the east. The rencounter, during which Derry was mortally stabbed, occurred on the 26th day of July, 1873, in the highway, a few yards east of Derry’s house. Before that time, a difficulty had existed between the families about some turkeys belonging to Derry, which had strayed over on the premises of Kingen and become mixed with Kingen’s turkeys. When Deny reclaimed his turkeys, the Kingens thought that he had taken more than his share, including some of theirs. There was also a difficulty about a gosling belonging to the appellant, which had strayed over to Derry’s premises with his goslings, and was carried back by the appellant. And there appears to have been some ill feeling between the appellant and the deceased about something, as was alleged, that he had said concerning her character and about a church trial, the character and merits of which do not appear. On the evening of the fatal occurrence, the appellant and her husband were going along the highway, eastward, by Derry’s house, toward the residence of Mrs. Bussell, who lived some half a mile east and north of Derry’s, and who was the sister of the appellant. Just as they passed Derry’s gate, some one from the house spoke, “ There they go, now; I wonder if they are hunting goslings ?” and one of Derry’s children, little Jimmy, went out and asked his aunt, the appellant, if she was hunting goslings? to which she replied, “ I am not raising turkeys this year.” On hearing this controversy, Derry came out into
There is some controversy in the evidence about the size of the knife necessary to have made the wounds, and whether all were made with the same instrument; and about the knife belonging to Harrison Kingen; and about another knife found in the house of appellant; and from what direction the stabs
The.State contended, from the size of the knife found upon Harrison Kingen, as shown by the evidence, and the depth and width of the wounds upon Derry, especially the fatal one in the side, that they could not have been inflicted by his knife; and, from the evidence touching another and larger knife, which, it is claimed, had been in the control of the appellant, that she must have inflicted the wounds upon Derry, especially the deeper and mortal one in his side, while the men were down and struggling, and Derry upon the top of Harrison Kingen.
The defence contends that the appellant had nothing to do with the fatal rencounter, except that she was present at the time, and that if she did aid, abet, encourage, or approve the acts of Harrison Kingen, her husband, in his difficulty with Derry, the law excuses her therefor, on account of her marital relation to her co-defendant in the indictment.
During the trial, the State asked a witness, Henry Bussell, what conversation he had with Harrison Kingen about a knife, which took place some half hour after the rencounter. The appellant objected, but the court overruled the objection, and allowed the evidence to go to the jury. The answer of the witness was:
At common law, husband and wife could not be witnesses either for or against-one another, nor for or against any other person indicted and tried jointly with the husband or wife for a joint offence. Corse v. Patterson, 6 Har. & J. 153; Lucas v. The State, 23 Conn. 18; Rex v. Hood, 2 Moody, 281; Rex v. Smith, 2 Moody, 289; Commonwealth v. Robinson, 1 Gray, 555.
Our code enacts, that “ husband and wife are incompetent witnesses for or against each other, and they cannot disclose any communication from one to the other, made during the existence of the marriage relation, whether called as a witness while that relation exists or afterwards.” 2 G. & H. 170, sec. 240. And we hgare numerous decisions sustaining this section. McVey v. Blair, 7 Ind. 590; Weikel v. Probasco, 7 Ind. 690; Woolley v. Turner, 13 Ind. 253; Harris v. Rupel, 14 Ind. 209; Morse v. Morse, 25 Ind. 156; Kyle v. Frost, 29 Ind. 382; Newhouse v. Miller, 35 Ind. 463; Taulman v. The State, 37 Ind. 353; Bonham v. Keen, 40 Ind. 197; Stanley v. Schultz, 47 Ind. 217.
If a husband cannot testify against his wife as a witness, much stronger are the reasons why his statements without oath should not be received as evidence against her. We think that the evidence was material, and that the court erred in allowing it to go to the jury.
The judgment is reversed; the cause remanded, with directions to sustain the motion for a new trial, and for further proceedings. The clerk will issue the proper order for the return of the prisoner.