The appellant was charged by indictment, in the Tippecanoe Circuit Court, with the murder of his wife, Hattie E. Pettit, by administering to her quantities of strychnine.
The venue of said cause was changed to the circuit court of Montgomery county, where, on the 20th day of November, 1890, after a trial occupying six weeks, he was convicted and his punishment fixed at imprisonment for life. He appeals to this court from the judgment of the lower court, and many questions are presented for review.
We are asked to pass upon the sufficiency of the evidence to warrant a conviction, and we have read much of the evidence, though it covers several thousand pages of typewritten record.
The prosecution rested upon circumstantial evidence, involving the appellant’s loss of affection for his wife and his infatuation for Mrs. Whitehead, a widow with
The charges against him, upon the evidence, included neglect of his wife and his home, relations with Mrs. Whitehead, that, if not criminal, and if not affectionate, were at least of a very intimate social character, of a character that he, as a minister of the gospel, could not indulge, in justice to" the ties which, before the God he professed to worship; bound him to Hattie E. Pettit; that ten or twelve days before his wife’s death he sought strychnine of a druggist under unusual circumstances and conduct; his wife did not feel well, he gave her tea of the taste of which she complained, almost immediately following the drinking of a portion of the tea she was violently ill with symptoms indicating strychnia poisoning; after vomiting she became better, and expressed the belief that she had received poison, and that it might have been in the tea; later,' and during her illness, he gave her a capsule, the contents of which is in dispute, and following this she was again violently ill with symptoms of strychnia poisoning; he gave her other medicines claimed by the State to have contained strychnia; that the condition of the limbs and parts of the body after death indicated strychnia poisoning; his conduct with the family of Mrs. Pettit, in promising to explain to them her death, and hastening away from
We do not say that these circumstances were given without attempted explanations, denials, and excuses, but they were of such strength and character that, in our opinion, they formed a proper case for the jury. If the evidence of the State was believed, the probabilities of guilt were strong, if not conclusive. But the conflict in the evidence, its weight and effect, were properly questions for the jury, and we will not consider them.
One of the alleged errors of the circuit court was in denying the appellant a continuance of the trial of the cause, as applied for on the 7th day of October,- 1890. The cause had been set for trial on the 8th day of October, 1890, and when the 7th day of that month had arrived, the appellant filed his affidavit and motion for such continuance, in which it was shown:—
That appellant was charged with having feloniously caused the death of his wife, Hattie E. Pettit, by admin-' istering to her a certain poisonous drug called strychnine, at affiant’s home, in Shawnee Mound, Tippecanoe county, Indiana; that affiant and one Elma O. Whitehead were jointly indicted for the murder of said Hattie Pettit; that they severed in their defense, and afterwards a nolle prosequi was entered in said cause against Elma O. Whitehead in the Tippecanoe Circuit Court, and the said case as to her was then ended; that affiant is not guilty of -the crime charged against him, and if he can have a reasonable time given him to secure the attendance of his witnesses at the trial of this cause, he will be able to prove his innocence, and that he can not safely go to trial in this case at this term of court, because of the absence of an important and material witness, Emmeline C. Ford; that he was married to his said wife on
Counsel for the appellee inform us that the continuance was denied on two grounds: “First, because the affidavit did not show that the testimony of the witness would be material or competent, and, second, because it did not show due diligence to procure the testimony of the witness.” These grounds of objection to the affidavit counsel for appellee ably endeavor to maintain, but we find it our duty to dissent from their contention as to each objection. It will be observed that the affidavit anticipates the line to be pursued by the prosecution in seeking a conviction, and that the line so anticipated was that Mrs. Pettit died from strychnia poisoning; that the deadly drug was administered by appellant; that his motive was in the loss of affection for his wife, and the possession of an infatuation for Mrs. Whitehead. Each of the elements of the case so anticipated, it was further anticipated, was, in part, to be established by va
One circumstance alleged to have been relied upon by the State, was that the appearance of the body, hands, and,face of the remains of Mrs. Pettit were drawn out of natural position, and thereby indicated the unnatural condition which follows a death caused by strychnine. The affidavit stated that the absent witness would “testify that she saw the face, body and hands of affiant’s wife after death, and that there was nothing unnatural about the appearance or position of her face, hands and body.” The only reason given by the State for the ex-
This must be true in all inquiries involving matters of common observation. If it were otherwise, it could be objected that a condition of darkness could not be proven except by showing the absence of light, cold could not be shown except by proving the absence of heat, and that a color might not be identified except by proof of its constituent shades. All are subject to the objection that they are conclusions, if the proof offered is objectionable, and any of the methods suggested for proving the conditions supposed would be subject to the same objection, and, therefore, no method of proving any such fact, however important, could be freed from such objection.
The valué of the negative fact, and the impracticability of establishing it by positive or affirmative facts, render the denial of its existence necessary. This may not be the rule where the negative fact is the subject of special learning or scientific knowledge, but it must be
As another material question upon the trial, it was alleged that the prosecution would offer evidence tending to show a death by strychnia poisoning, and that the absent witness would testify that after the 14th day of June, 1889, and before the alleged poisoning, Mrs. Pettit had stated to the witness that she, Mrs. Pettit, had not felt well all spring, and that, only a few days before her death, she had further complained of then not feeling well and of existing dizziness and pains in her back, head and neck. The relevancy of this evidence was shown by the statement that the conditions so complained of by Mrs. Pettit were symptoms of malaria, and that medical witnesses would so testify upon the trial, and, further, that both he and the appellee would produce medical witnesses upon the trial, and that he must secure this evidence to be enabled to submit such symptoms in the hypothetical questions to be propounded to such witnesses, and thereupon obtain opinions as to whether death was the result of strychnia or malarial poisoning.
All that is claimed by the appellee against this evidence is the following:—
“In order to show that it was material to inquire into the question of malaria at all, it was necessary that appellant should allege in his affidavit that Mrs. Pettit died from that cause, and not from strychnia, as alleged in the indictment. This is not claimed in the affidavit, and it is very evident that a person suffering from malaria may be murdered by the felonious administration of strychnia, as well as a person in good health. He' says he wishes to propound hypothetical questions to experts on this point, but does not allege that any one of them*409 will testify that the symptoms of the ailment from which she died were those of malaria. For all that is shown by the affidavit, the experts may have answered that they were not the symptoms of malaria.”
It was not essential to the materiality of the offered evidence that it be shown that Mrs. Pettit died of malarial poisoning, and not from strychnia.
Considering the sufficiency of the affidavit in this respect, the evidence offered may be viewed as if the wit-' ness were before the court on behalf of the defendant. If the evidence tended to show a death from malarial poisoning, it was admissible. Whether it was sufficient to prove such death, was a question of its weight, and not of its admissibility. Its weight was a question for the jury, and it was not necessary that it should be found that death resulted from malarial poisoning, but it was quite sufficient if, from it, the jury should entertain a reasonable doubt as to the death from strychnia.
Counsel are mistaken in the assertion that it does not appear that the experts would testify that the symptoms proposed to be proven were those of malaria.
A further showing was that the appellee would rely upon testimony that on the day of his wife’s death the appellant was under the influence of intoxicants, as a circumstance indicating a want of respect for her, and as evincing an indifference to her death. The opportunities of the absent witness to know of his conduct on the day of the wife’s death, were shown, and it was alleged that she would testify that his conduct was not unbecoming, and that he was not under the influence of intoxicants. To this question the appellee has made no argument, and the appellant but suggests the admissibility of the proposed evidence in contradiction of a witness who testified for the appellee, that; on that occasion, the de
If the evidence of the appellee’s witness was competent, the contradiction proposed was equally competent, and the evidence having been admitted, the proposed evidence could not have been rejected, if for no other reason than that one introducing incompetent evidence can not object that, having opened the door to the admission of such evidence, his adversary avails himself of the same privilege.
But we may not hold the proposed evidence material by searching the record beyond the affidavit. We can only say that a reference to the record fails to disclose that the appellant was not harmed by the refusal of his application. Regarding the question of the materiality of the evidence proposed as waived, excepting in so far as it would have contradicted evidence not subject to our inspection, we do not pass upon the question.
One of the vital elements of the appellee’s case, in fact and in the anticipation of the appellant, as alleged in his affidavit for a continuance, was that the appellant entertained no affection for his wife, and much of the evidence proposed was competent and material upon this question. The relationship of Mrs. Ford to Mr. and Mrs. Pettit, and the acquaintance and association shown, gave her peculiar knowledge of the treatment by Pettit of his wife.
Counsel for appellee concede that evidence of. the character proposed was competent upon the question of motive, but they say that the facts alleged show no opportunity to know anything of his treatment of her for two years, while the Pettits resided at Shawnee Mound, excepting that period covered by the visit of unknown duration, which was paid -by Mrs. Ford to the Pettits, in May, 1889. The affection entertained by him for his
We have shown sufficiently the error in holding that the proposed evidence was not material, and it remains to determine whether it was shown that the appellant was diligent in his efforts to procure the evidence of the witness before applying for the continuance.
The subpoena was issued, and sent to the proper sheriff on the 5th of September, 1890, more than thirty days before the day set for the trial. Within a few days, he learned that the witness was away from home, and he thereupon wrote to the sheriff to learn if she had been served with said writ; that on the 19th day of September the writ was returned not served; that thereupon he took steps, by writing, to learn her whereabouts, and as to when she would return, and where a letter would reach her; that immediately upon receiving the information sought, and on the 25th day of September, he wrote to her at East Portland, Ore., where she was visiting, and urged her return for the trial, and requesting an answer by telegraph. It thus appears that he first learned her whereabouts on the 25th day of September. Up to this point there is little room for the charge of negligence.
Taking the time necessary in preparing for such mission, giving the required notice, and in reaching that distant point, omitting the intervening two Sundays, and taking the deposition, and returning it for filing at least one day before the day on which the cause stood for trial, would have required extraordinary diligence, if not impossible haste. The court knew judicially that the distance to East Portland from Crawfordsville was two thousand three hundred and ninety-eight miles, and that, by the ordinary course and methods of travel, it required within a few hours of five days between the two points, or at least nine days continuous travel in going to and returning from East Portland. If notice of the taking of depositions could have been given on the 25th day of September, the day of the discovery of the whereabouts of the absent witness, and excluding the day.of the giving of notice, and one of the two Sundays intervening between that date and October 7th, the day upon which the deposition was required to be filed, and but ten days remained in which to go to Portland, secure the attendance of the witness, take the deposition and return for the trial, including one of said two Sundays. Diligence could not be made to depend upon such narrow margins of time. He was without means, and confined in jail. Such steps require not only means, but willing assistants. It might be argued that assistance could have been procured by order of court, but to seek that aid would only consume further time necessary for the long journey. We can not believe that he failed in diligence.
We are urged to consider against the application the fact
But to permit the trial court to consider the former affidavit relating to the proposed evidence of witnesses, other than the witness for whose evidence a continuance was sought, would place that court in the position of deciding, without information, that the defendant had not been mistaken in his belief as to the proposed evidence of such other witnesses, or that he had, in said former affidavit, sworn falsely, and that such affidavit could be considered in impeachment of the latter application.
Whatever the rule, where both applications are for the taking of the evidence of the same witness, we can not adopt the rule here urged. We conclude that the continuance should have been granted.
To one Switzer, an important witness for the appellee, the following question was asked upon cross-examination: — ■
“Q,. I will ask you to state if you didn’t have this conversation with them (Julian and Wallace) at that time and place, or this in substance, ‘Pettit is going to 'get out on bail, the justice of the peace says the case is bailable, but who will go on his bond?’ Julian says, T will go on it for $4,000;’ and Wallace says, ‘I* will go on it, too;’ and you said, ‘I wouldn’t have any sympathy for you if you lost it all;’ and Julian said, ‘all*414 right, you will not have to pay it; ’ did you not have that conversation? A. That is not correct.
“Q. Or in substance? A. Part of it is correct and part is not.”
At the proper time, Julian and Wallace were called on behalf of the appellant and were asked severally the following question: — ■
‘‘Q,. I will ask you whether or not, on the next day after the trial, the preliminary trial of Pettit, at La Fayette, that you met Mr. Switzer about a quarter of a mile north of Mr. Kincaid’s, you and Mr. Wallace, and whether or not .upon that meeting Mr. Switzer said to you, ‘Pettit is going to get out on bail; the justice says the case is bailable, but who will go on his bail?’ To which you replied, ‘I will go on for $4,000,’ and Wallace said, ‘I will go on, too;’ to which Switzer responded, ‘I would not have any sympathy for you if you lose it all; ’ to which you said, ‘all right, you will not have to pay.’ That, or that in substance?”
The appellee’s objection to this question was sustained by the court, and that ruling is urged as error.
The appellant contends that the statement of Switzer to Wallace and Julian was one of hostility or ill-will toward him, while the appellee insists that it was but an expression against the practice of becoming surety, and not an evidence of feeling or interest against Pettit. No objection is made to the form of the -question, but it is expressly stated that the question, with the questions immediately preceding it, was in proper form.
It is also conceded that if the conversation sought to be proven involved an expression of ill-will, or a feeling of hostility against Pettit, it was competent. Such is the rule as held in Scott v. State, 64 Ind. 400; Johnson v. Wiley, 74 Ind. 233; Stone v. State, ex rel., 97 Ind. 345; Ford v. State, 112 Ind. 373; Skinner v. State, 120 Ind.
The conversation, in our opinion, involves an effort on the part of Switzer, to deter Wallace and Julian from becoming surety for Pettit, and if this conclusion is correct, it involves the indirectly expressed belief of Switzer that, if released upon recognizance, Pettit would not remain and confront the charge against him, but that the sureties upon the bond would have to respond to a forfeiture. Such conclusion implies not only the belief that Pettit was guilty as charged, but that he was dishonest in not intending to remain and defend the charge, but to leave his sureties to meet the stipulations of the bond. Whether this effort to deter Wallace and Julian from becoming sureties, and whether the conclusions and implications following were from malice or interest, were questions for the jury. The feeling manifested was not that of a disinterested or sympathetic heart, but was that of a meddler, and not the ordinary conduct of one wholly disinterested and unbiased. The degree of interest, bias, or malice could be judged only by the jury, and the evidence should have been admitted.
Another question arising upon the record is as to the alleged error of the court in rejecting, as evidence for the defendant, a letter from Mrs. Pettit to her husband, containing expressions of endearment. It is urged by appellant’s counsel that the letter was admissible, both in rebuttal of the theory of the husband’s loss of affection for his wife, and in contradiction of Hickman as to complaints of the wife, heretofore given, and of Wilson, that Pettit was neglecting his wife in being from home days at a time without advising her of his whereabouts.
The record does not disclose that the court permitted
In that case the letter contained statements of the kindness of the husband. We are not required to hold that declarations or letters to third persons are admissible, but we do hold that communications between the husband and wife are an index to the relations existing between them.
It is contended that the court further erred in striking out parts of defendant’s affidavit on motion for a change of venue from Tippecanoe county. The action complained of was in sustaining a motion by the prosecuting attorney, and the matter was not actually removed from the affidavit. The allegations thus withdrawn from consideration related to a state of feeling existing against the defendant in Montgomery county, and were included in the affidavit for the purpose of enabling the court to-exercise its discretion as to what county the cause should be sent to upon the change prayed.
It is first urged that the application for a change of venue was not sworn to as modified by the action of the court in so sustaining said motion, and that therefore the action in granting the change was erroneous. The theoretical alteration of the affidavit did not alter the verification of the facts not so stricken out, nor did it vary, change, or modify the facts so remaining.
However, in permitting the change to be granted without asking to withdraw or amend the application was a waiver of the charge that the application was incomplete as granted. Secondly, it is insisted that the court erred in refusing to entertain the facts so stricken out, and to consider them in determining what its discretion as to the change of venue should be. Upon the motion the facts were brought to the attention and knowl
The State offered evidence tending to show that the appellant had not entertained proper affection for his little daughter. The evidence arose incidentally, and related to specific acts. Its admissibility is not before us. In defense, the appellant introduced the testimony of a witness, Ollie Reese; that appellant was kind to the child. This evidence, on motion of the prosecutor, was, by the court, stricken out. This was not error. His relations to the child were not the proper subject of investigation, and the specific acts offered by the State could not be answered by general conduct.
There are other questions discussed, but having concluded that -the judgment of the lower court can not stand, and that upon another trial such questions will not necessarily arise, we do not consider them.
The judgment of the circuit court is reversed, with instructions to grant a new trial, and the warden of the State’s prison north is directed to return the appellant to the custody of the sheriff of Montgomery county.