* * *
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 People's Reading Circle.
Miss Oberholtzer was introduced to appellant by her escort at a banquet in the city of Indianapolis, January 12, 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 [p. 642] 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 15, 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 some one 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 cannot 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 Stephenson'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, Ind. At this time, she became [p. 643] 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 No. 416. Gentry then registered under the name of Earl Gentry, address Indianapolis, Ind., and was assigned to room No. 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 laid 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 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 $13.50. 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 16, 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 [p. 644] 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 some one 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 Thirty-Eighth 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 17, 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 every one 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. Shultz, who roomed at the Oberholtzer home with her eldest son George. When Klinck carried Miss Oberholtzer into the house, Mrs. Shultz 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. Shultz 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. Shultz 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. Shultz 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. Shultz went up to see Miss Oberholtzer, whom she called Madge. The door to her room was closed and Mrs. Shultz 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. Shultz noted the bruises on Madge. The one on her right cheek was a dented wound of [p. 645] 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. Shultz 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, was 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. Shultz, I am dying."
Miss Oberholtzer told Mrs. Shultz 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 check 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 that 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. Shultz that she had been injured in an automobile accident, and when site heard Klinck say this to Mrs. Shultz, 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 Spratley 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 14, 1925, in Marion county, Ind., 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 chance 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 [p. 646] 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 14, 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 or 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. Nephritis, caused by the poison if the patient lives beyond the twelfth 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 making 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 such pyemia could probably have resulted. The injury made on 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 [p. 647] 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 3/8 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, 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 a 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 the case of Rex v. Beech, 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 [p. 649] 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 Ed.) 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 (1889) 124 Cal. 551, 57 P. 470, 45 L. R. A. 783. We do not understand that by the rule . . . 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 dominion 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 o'clock a. m. she swallowed
the poison. Appellant argues that the deceased was a free agent on this
trip to purchase a hat, 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 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 a 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.