Anderson v. State

• Decision Date: 29 June 1966
• Docket Number: No. 30609,30609
• Citation: Anderson v. State, 217 N.E.2d 840, 247 Ind. 552 (Ind. 1966)
• Parties: Alonzo Stokes ANDERSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 840

217 N.E.2d 840

247 Ind. 552

Alonzo Stokes ANDERSON, Appellant, v. STATE of Indiana, Appellee.

No. 30609.

Supreme Court of Indiana.

June 29, 1966.

Forrest Bowman, Jr., Indianapolis, for appellant.

John J. Dillon, Atty. Gen, David S. Wedding, Deputy Atty. Gen., for appellee.

MYERS, Judge.

This was a criminal action commenced by the State of Indiana by an indictment charging appellant with the felony of first-degree murder. The cause was submitted to a jury on appellant's plea of not guilty which resulted in a verdict that appellant was guilty of manslaughter. Judgment was rendered thereon, and appellant was sentenced to the Indiana State Prison for a term of not less than two years nor more than twenty-one years. Appellant's motion for new trial was overruled by the trial court and this appeal followed.

Evidence most favorable to the State reveals the following: One Dorothy Andrews testified that on July 2, 1962, she was at home alone in her apartment located at 1116 North Capitol Avenue in Indianapolis, Indiana. About 9:00 a.m., the deceased, Charles Willie Mays, came in and sat down. She was lying on a couch not fully clothed. There was a knock on the door, and she recognized the voice of appellant. She put on a blouse and skirt, then let appellant in the room. An argument ensued between appellant and the deceased. Appellant pulled a pistol out of his pocket, walked over to the deceased, began hitting him with the pistol and kicking him.

Appellant then grabbed the deceased around the collar, pulled him out of the chair and pushed him toward the hallway. Deceased half turned and told appellant to put the gun down. At that moment appellant fatally shot the deceased. Dorothy Andrews stated that just before the shooting, appellant stated: 'I knew I would have to kill you sooner or later.'

Following the shooting, Dorothy Andrews ran across the street to a Tire Company and hid behind some tires because she was scared and felt her life was in danger. She then asked some boys to call the police. When they arrived, she accompanied them to the scene of the shooting.

She further testified that in 1959, appellant came home from the Penitentiary and she became his 'girl friend.' They lived together until the Spring of 1962, when she left him. Since that time there had been several altercations between appellant and the deceased. In particular, on one occasion at her mother's home in May, 1962, appellant attacked the deceased with a knife, cutting his face and arm. Appellant wanted her to come back to him, but she refused.

The assignment of errors is based upon the overruling of appellant's motion for new trial. The first two grounds therein are that the verdict of the jury was contrary to law and not sustained by sufficient evidence. These are treated together in the Argument section of appellant's brief as Proposition I.

Appellant admits:

'There is ample circumstantial evidence in the record in this cause, obtained from apparently credible witnesses, to establish the corpus delicti of first degree murder or manslaughter. However,' he says, 'aside from the testimony of the witness, Dorothy Jane Andrews, there is not a scintilla of evidence to implicate the defendant, Alonzo Anderson.'

The record shows that Dorothy Andrews admitted on the witness stand that she was thirty years of age, that she had been a prostitute since she was twenty, that she was a narcotic addict since eighteen or nineteen years of age; that she had never been employed since leaving high school, that she had never had a legitimate source of livelihood since high school days in 1949; that she had been convicted of contributing to the delinquency of a minor in 1951; that she had been convicted of prostitution and obscene conduct in 1956 or 1957; that she had been convicted of public intoxication in 1959 and 1962; that she had been arrested for grand larceny in 1959.

Appellant claims that the testimony of Dorothy Andrews is insufficient to sustain a conviction herein; that there is no substantial evidence before this court, as a matter of law, to support the required material facts essential to a conviction ; that she was so disreputable that her credibility becomes a question of law for the court. The case of Sylvester v. State (1933), 205 Ind. 628, 187 N.E. 669, is cited as authority for the proposition.

In that case, the appellant, Sylvester, was tried and convicted by a jury of vehicle taking. The only evidence connecting Sylvester in any manner with the stolen automobile came from the mouth of a single witness. He was an admitted thief, highway robber and deserter from the Navy. Each of his material statements concerning Sylvester was directly contradicted by himself under oath, by disinterested witnesses, by circumstantial evidence and by physical facts. The witness was arrested with Sylvester as an accomplice to the crime, pleaded guilty and was sentenced. At the hearing, before pronouncing judgment, the Judge questioned him about the facts surrounding the alleged theft and received answers positively denying that any other person had anything to do with taking the car. He later signed an affidavit in which he exonerated appellant Sylvester from taking any part in the stealing of the automobile. At Sylvester's trial he changed his tune and implicated him in the taking. This court reversed the conviction of Sylvester partially on the grounds that such testimony as this must be carefully scrutinized, not only by the jury, but by the court, in order to determine whether there was any substantial evidence to sustain each issuable fact as a matter of law; that the legitimate evidence in the case failed as a matter of law to establish that Sylvester had any criminal connection with the larceny, and that the verdict was brought about by 'collateral matters.' These collateral matters concerned the Prosecutor's attempts to insinuate other offenses than the one for which the accused was on trial by argument or repeatedly asking rejected questions and commenting upon what the answers would have been if allowed.

We do not think the Sylvester case is pertinent to the facts in the present case. Here, the witness, Dorothy Andrews, did not contradict herself under oath regarding any material fact or statement concerning appellant's connection with the shooting. She was not contradicted under oath by any disinterested witnesses. No circumstantial evidence contradicted her story so as to render it unbelievable. There were no physical facts which made her testimony unplausible. She was not alleged or proven to be an accomplice. In spite of her reputation and background, the jury could have found that her evidence was not imaginary, but was substantial.

Appellant took the witness stand in his own behalf and denied that he had ever been in Dorothy Andrews' apartment. It was up to the jury to weigh the conflicting evidence and determine the credibility of the witnesses. Swift v. State (1961), 242 Ind. 87, 90, 176 N.E.2d 117. It is not the province of the court to do so when there is substantial evidence. Wells v. State (1964), Ind., 197 N.E.2d 301. There was sufficient evidence of probative value to support the verdict of the jury. The testimony of Dorothy Andrews was not so seeming and imaginary as to make it a matter of law for this court to determine because of it being based on mere conjecture, supposition or outright falsehood.

Under sufficiency of the evidence, appellant claims that there is a failure of proof, or a variance in the evidence, in that the indictment charged appellant with killing deceased with lead bullets, and the evidence showed he was killed with copper-coated lead bullets.

There is no showing here that these claims were prejudicial to the substantial rights of appellant upon the merits. Our Criminal Code provides that no judgment or other proceeding shall be stayed, arrested or affected by any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. Burns' Ind.Stat., § 9--1127 (Tenth), 1956 Replacement; Lucas v. State (1918), 187 Ind. 709, 121 N.E. 274. As a variance it was immaterial. Denton v. State (1965), Ind., 203 N.E.2d 539. Furthermore, it was waived by failure to object to it during trial. Roberts v. State (1964), Ind., 197 N.E.2d 304.

Appellant contends that error was commited in the trial court's refusal to permit Dorothy Andrews to state whether she had been convicted of violating a Municipal Ordinance of the City of Indianapolis commonly known as 'lewd woman on the street,' being sections 10--908 and 10--924 of the Municipal Ordinances. It is admitted that the exact question involved is one of first impression in Indiana. No authorities are cited which state that convictions under Municipal Ordinances are proper subject-matter for impeachment. Appellant admits that violations of Municipal Ordinances are technically not crimes, but says that 'this does not necessarily render the evidence inadmissible.'

Appellee says in its brief '* * * it is well settled that violation of municipal ordinances are not crimes and hence are not proper subject matter for impeachment.' No authorities are cited for this statement.

We do not believe it makes much difference whether she answered the question or not. She had already admitted she was a prostitute for ten years. The ordinances involved pertained to prostitutes and solicitation as such. The purpose of the cross-examination was to question her credibility and show her depravity. This had already been brought out on direct examination and cross-examination. In the latter she admitted to having been convicted of prostitution in Cleveland, Ohio, in 1953. There was no need to belabor the witness with violations of Municipal Ordinances when she admitted to violating laws which are misdemeanors on the statute books pertaining to the same subject-matter.

Appellant charges that the trial court erred...