Aubrey v. State, 373S59
| Decision Date | 19 February 1974 |
| Docket Number | No. 373S59,373S59 |
| Parties | Thomas AUBREY, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Ferd Samper, Jr., Samper & Samper, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of Murder in the First Degree, 1 and sentenced to life imprisonment. His appeal presents two questions, treated in the following order:
I. The sufficiency of the evidence upon the issue of the requisite premeditation.
II. The denial of the defendant's motion for a mistrial for prosecutorial misconduct.
ISSUE I. Decedent, Defendant and witness Lane were companions. Lane and the defendant were together in the defendant's home in Indianapolis on September 1, 1970. At that time, the defendant told the witness that he was mad and wanted to get 'hold' of the decedent. The decedent had been in Ohio, but he telephoned Lane that evening and told him that he was returning and was then in Richmond, Indiana. Lane so advised the defendant, who said that he wanted to catch the decedent on the highway. The defendant and Lane left in Lane's automobile and intercepted the deceased. The defendant alighted from Lane's automobile, and Lane returned to the house alone, and the defendant returned with the decedent in the decedent's automobile. Lane arrived first, and when the defendant and the decedent arrived they were mad at one Jim Pierce. The defendant asked Lane to take him to Jim Pierce's. Lane consented and they departed, this time in the decedent's automobile. At this time, the defendant took the murder weapon, a pistol, from the house and concealed it under the dashboard of the automobile. They drove to their destination but did not stop, as there was another automobile approaching. The defendant instructed Lane to drive on, which he did. He turned around and returned but the defendant said, Lane drove on and was stopped by the County Sheriff who searched the car. The Sheriff did not find the gun, and he released them. They returned to the defendant's home, and on the way the defendant told Lane that there were only three people who knew they were going 'out there.'
Lane and the defendant returned to the defendant's house, the defendant went in the front door and instructed Lane to look around in the back and see if there were any police there. Lane did so, found no police and entered the house through the back door. As he entered the house, he heard the defendant and the decedent arguing in the living room at the front of the house. Lane walked into the living room, as the argument continued. The decedent was denying that he understood what the defendant was saying. The defendant brought the gun out, shot the decedent through the head and, calling the decedent an obscene name, stated that he now knew what he was talking about. The decedent fell to the floor.
After shooting the decedent, the defendant rubbed the gun against the decedent's hand, dropped the gun to the floor and told Lane to call the police, which he did. When Lane returned from the telephone, the defendant instructed him to tell the police that the decedent had accosted them with the gun and that it went off as he, the decedent, and the defendant were fighting over it. Lane placed a pillow under the decedent's head and as they awaited the arrival of the police, the defendant kicked the decedent in the mouth and said, 'dead men don't tell no tales.'
From the foregoing, the jury was warranted in finding the defendant guilty of murder in the first degree. Defendant has cited us to the following quotation from Everett v. State (1935), 208 Ind. 145, 149, 195 N.E. 77, 79.
'* * * In order that there may be such premeditated malice as will make a killing murder in the first degree the thought of taking a life must have been consciously conceived in the mind, the conception must have been meditated upon, and a deliberate determination formed to do the act.'
We agree with the statement, but we are of the opinion that the evidence herein fulfills those requirements. The defendant's statement to Lane at the time he was thwarted in his plan to see Jim Pierce and settle some difference with him indicated that he had concluded that the decedent had notified the Sheriff's office that the defendant should be intercepted. When they returned to the house, the defendant wanted to be sure that there were no police around. An argument erupted between the defendant and the decedent immediately upon the former's entering the house. The defendant's statement as he fired the pistol into the decedent, 'now you know what I am talking about,' and his kicking the decedent after ...
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