Askew v. State, No. 981S232

Docket NºNo. 981S232
Citation439 N.E.2d 1350
Case DateOctober 04, 1982
CourtSupreme Court of Indiana

Page 1350

439 N.E.2d 1350
Norman ASKEW, Appellant,
v.
STATE of Indiana, Appellee.
No. 981S232.
Supreme Court of Indiana.
Oct. 4, 1982.

Page 1351

William F. Wurster, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Judge.

Appellant was charged with the crime of Murder. He was found guilty by a jury and sentenced to a forty (40) year term of imprisonment.

The decedent, Paul Sargeant, lived with his grandmother, one Anna English, in an apartment in Indianapolis. She testified the decedent was part of a narcotics distribution operation headed by appellant. On May 27, 1980, appellant visited Mrs. English's apartment looking for the decedent, who was not there at the time. Mrs. English stated appellant said he was going to kill the decedent over "his money," which she assumed meant money the decedent owed appellant as a result of some narcotics transactions. When the decedent arrived at the apartment Mrs. English told him of appellant's threat.

State's witness Serena Bell testified that approximately 8:00 A.M. the next day the decedent was walking down the street in the apartment complex when a green car began following him slowly. The driver of the car pointed a shotgun out the window and shot the decedent in the lower left side of the chest. The witness positively identified appellant as the man who shot the decedent. Bell had also viewed police photographic displays shown to her after the crime occurred. From these displays she had selected two photographs of appellant as the murderer.

State's witness James Jones testified that before 8:00 A.M. on the morning of the crime, he loaned his car, a 1970 Buick Electra 225, to appellant's girlfriend. About 11:30 that morning she called Jones and told him she had wrecked his car and would see that it was repaired. The next day appellant, appellant's girlfriend and a third

Page 1352

party took Jones to a house to see his car. He testified it was by that time partially painted with gray primer paint. He also testified though the others tried to show him a spot on the fender where the car had allegedly been dented and already straightened out, he was unable to discern that it had ever been damaged there at all. He got the car back about a week later, by which time the body had been painted black.

State's witness Tony Boyce, who was visiting a friend in the apartments at the time of the shooting, testified he saw a green Buick Electra 225 speeding away from the complex immediately after he heard a shot or shots fired. Witness Bell was unable to offer any testimony about the car other than that it was green.

Appellant claims the verdict is contrary to law and that the evidence is insufficient to support the verdict of the jury. We treat the two allegations of error as one, as they involve essentially the same questions.

We do not reweigh the evidence nor judge the credibility of witnesses. Bond v. State, (1980) Ind., 403 N.E.2d 812.

The elements of murder in Indiana are that (1) the defendant (2) knowingly or intentionally (3) killed (4) another human being. I.C. Sec. 35-42-1-1 [Burns 1979 Repl.].

In the case at bar the presence of each of these elements is supported by sufficient evidence of probative value such that the conviction can be sustained. The eyewitness testimony of Serena Bell is sufficient to satisfy the element that appellant was the perpetrator of the offense. Appellant claims this testimony is suspect because it was contradicted by that of Detective Robert Green, an Indianapolis police officer, who investigated the crime. Green testified that during his investigation of the crime he received information from one Eddie Brown, who did not appear as a witness, that there was another passenger, a female, in the car with appellant when the crime occurred. However, such evidence no more than makes possible an inference that there was another person in the car who could have committed the murder. Reaching alternative inferences such as this is a function of the trier of fact, not this Court. Cole v. State, (1980) Ind., 403 N.E.2d 337; Stallings v. State, (1970) 255 Ind. 365, 264 N.E.2d 618. We cannot reverse the conviction merely because this inference is a plausible one that might have been drawn from the evidence.

As to the mens rea, we have held the intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death or great bodily harm. Fryback v. State, (1980) Ind., 400 N.E.2d 1128; Chambers v. State, (1979) Ind., 392 N.E.2d 1156. In the case at bar the evidence most favorable to the State shows appellant fired a sawed-off shotgun at close range into the decedent's chest. We hold this evidence supports the finding of the trial court as to the element of intent.

That the decedent, a human being, died as a result of the wounds inflicted upon him is shown by the testimony of the pathologist, Dr. Benz, who performed the autopsy on the victim's body.

We hold the evidence is sufficient to support the finding of the presence of all the elements of the offense beyond a reasonable doubt.

Appellant claims the trial court erred in overruling his Motion for Discharge. On appeal he claims discharge was proper because the information on which the charge was based failed to state that the victim, Paul Sargeant, was a human being.

It is true, of course, the murder statute, I.C. Sec. 35-42-1-1 [Burns 1979 Repl.], applies only to the killing of human beings. Also, appellant correctly points out the indictment or information must state the crime in the words of the statute or...

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36 practice notes
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1984
    ...words of the statute or words that convey a similar meaning. Smith v. State, (1983) Ind., 445 N.E.2d 998; Askew v. State, (1982) Ind., 439 N.E.2d 1350. The information did allege that the murder was committed "while in the commission of Robbery, a felony." Measured by the standards in Smith......
  • Games v. State, No. 185
    • United States
    • Indiana Supreme Court of Indiana
    • March 14, 1989
    ...the passions of the jury clearly outweighs its relevancy. Ferry v. State (1983), Ind., 453 N.E.2d 207; Askew v. State (1982), Ind., 439 N.E.2d 1350. Although the photo may depict gory, revolting or inflammatory details of the crime, this is not, by itself, a sufficient basis for its exclusi......
  • Burris v. Farley, No. 3:92cv0755 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 27, 1994
    ...words of the statute or words that convey a similar meaning. Smith v. State, (1983) Ind., 445 N.E.2d 998; Askew v. State, (1982) Ind., 439 N.E.2d 1350. The information did allege that the murder was committed "while in the commission of Robbery, a felony." Measured by the standards in Smith......
  • Bieghler v. State, No. 1183S409
    • United States
    • Indiana Supreme Court of Indiana
    • July 31, 1985
    ...to Ind.R.App.P. 8.3(A)(7) and, further, he failed to sign each tendered special instruction pursuant to Askew v. State, (1982) Ind., 439 N.E.2d 1350 [relying upon Ind.Code Sec. 35-1-35-1 (Burns 1979) (repealed effective September 1, 1982) (replaced by Ind.Code Sec. 35-37-2-2(6) (Burns 1985)......
  • Request a trial to view additional results
36 cases
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1984
    ...words of the statute or words that convey a similar meaning. Smith v. State, (1983) Ind., 445 N.E.2d 998; Askew v. State, (1982) Ind., 439 N.E.2d 1350. The information did allege that the murder was committed "while in the commission of Robbery, a felony." Measured by the standards in Smith......
  • Games v. State, No. 185
    • United States
    • Indiana Supreme Court of Indiana
    • March 14, 1989
    ...the passions of the jury clearly outweighs its relevancy. Ferry v. State (1983), Ind., 453 N.E.2d 207; Askew v. State (1982), Ind., 439 N.E.2d 1350. Although the photo may depict gory, revolting or inflammatory details of the crime, this is not, by itself, a sufficient basis for its exclusi......
  • Burris v. Farley, No. 3:92cv0755 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 27, 1994
    ...words of the statute or words that convey a similar meaning. Smith v. State, (1983) Ind., 445 N.E.2d 998; Askew v. State, (1982) Ind., 439 N.E.2d 1350. The information did allege that the murder was committed "while in the commission of Robbery, a felony." Measured by the standards in Smith......
  • Bieghler v. State, No. 1183S409
    • United States
    • Indiana Supreme Court of Indiana
    • July 31, 1985
    ...to Ind.R.App.P. 8.3(A)(7) and, further, he failed to sign each tendered special instruction pursuant to Askew v. State, (1982) Ind., 439 N.E.2d 1350 [relying upon Ind.Code Sec. 35-1-35-1 (Burns 1979) (repealed effective September 1, 1982) (replaced by Ind.Code Sec. 35-37-2-2(6) (Burns 1985)......
  • Request a trial to view additional results

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