Amaro v. State, No. 767S37

• Docket Nº: No. 767S37
• Citation: 239 N.E.2d 394, 251 Ind. 88
• Case Date: August 16, 1968
• Court: Supreme Court of Indiana

Page 394

239 N.E.2d 394 251 Ind. 88 Carlos Y. AMARO and Juan Matias Vizcorrondo, Appellants,
v.
STATE of Indiana, Appellee. No. 767S37. Supreme Court of Indiana. Aug. 16, 1968.

[251 Ind. 89] Bernard M. Tetek, Gary, for appellants.

John J. Dillon, Atty. Gen., Duejean C. Garrett, Deputy Atty. Gen., for appellee.

LEWIS, Chief Justice.

The appellants herein are appealing from a conviction in the Criminal Court of Lake County of the crime of Manslaughter. Prosecution was commenced on the basis of a single indictment charging defendants with Second-Degree Murder. Pleas of not guilty were subsequently entered and judgment entered on the verdict by a jury.

[251 Ind. 90] The error assigned and relied on by the appellants is the overruling of their motion for a new trial by the Trial Court. Both appellants specify as error:

(1) That the Trial Court erred in overruling appellants' petitions to take a pre-trial deposition of a State's witness.

Page 395

Appellant Vizcorrondo also specifies as error:

(1) That the verdict of the jury is not sustained by sufficient evidence; and

(2) That the verdict of the jury is contrary to law.

Appellants' convictions were based on Burns' Indiana Statutes, Anno., (1956 Repl.), §§ 10--3405 and 9--102, which provide, respectively, as follows:

'Whoever voluntarily kills any human being without malice, expressed or implied, in a sudden heat, or involuntarily in the commission of some unlawful act, is guilty of manslaughter, and on conviction shall be imprisoned not less than two (2) years nor more than twenty-one (21) years.'

'Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command, or otherwise procure a felony to be committed, may be charged by indictment, or affidavit, tried and convicted in the same manner as if he were a principal, * * * and, upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.'

The evidence viewed most favorable to the State along with all reasonable inferences reveals the following: Juan Machuca and Salvador Sanchez were both, at approximately 12:15 A.M., waiting at a bus stop near one of the exits of the Inland Steel Plant in East Chicago. The two men were not acquainted with each other. Machuca, as a prosecuting witness, stated that while they stood there he noticed the appellant Vizcorrondo and another man drive by, and then pass by in the opposite direction a few minutes later. Two or three minutes from this last pass by the bus stop by the two men, Machuca [251 Ind. 91] was approached on foot by the appellant Amaro, who pulled a pistol from his belt and proceeded to shoot Machuca in the left side under the arm. Amaro then fired a second shot which hit Sanchez, who immediately fell fatally wounded to the ground with a wound of the heart and liver. There were no other eye witnesses to the shooting. No one, including Machuca, saw the pathway of escape used by the attacker, nor were there any sounds of an automobile pulling away from the vicinity. Two hours later, the police, following up the identifications offered by the witness, arrested both appellants, who were discovered sitting in an automobile in front of Vizcorrondo's residence.

Appellant Vizcorrondo vigorously contends that his mere companionship with Amaro, who was identified by Machuca as the assailant, will not support a conviction of manslaughter as an accessory. While it is not necessary to deal with this contention to resolve this appeal, we feel obliged to answer, so that the status of the record upon which appellant Vizcorrondo was convicted might be set straight. This Court recently stated:

'If the evidence merely tends to establish a suspicion of guilt, or the mere opportunity to do so it is clearly insufficient to sustain the conviction. * * * If mere opportunity or suspicion are sufficient to convict an accused of a felonious homicide or murder in the second degree then the life and liberty of many innocent people may be summarily sacrificed. The law requires substantial evidence to prove guilt beyond a reasonable doubt. We cannot predicate an affirmance of guilt upon mere possibility because of opportunity or suspicion. * * * Manlove v. State (1968), Ind., 232 N.E.2d 874, 881.

The only evidence presented on the record in this regard is the appellant Vizcorrondo's proximity to the place of the shooting a few minutes before its occurrence and his companionship with the principal offender, Amaro, before and after the attack. There was presented no evidence of

Page 396

any co-operation, or even approval of the conduct of his co-[251 Ind. 92] defendant. He was not present at the scene of the shooting and was not seen with the gunman at any time shortly after the assault. No evidence was presented by the prosecution to infer a common design between the two men, nor was there any evidence of any word or act which might have reasonably suggested encouragement or incitement to the jury.

On the basis of mere companionship shortly before the shooting and two hours afterward, this Court cannot, as a matter of law, place its stamp of approval on the conviction of appellant Vizcorrondo as an accessory to...