Badgley v. State

• Decision Date: 16 December 1948
• Docket Number: 28417,28418.
• Citation: 82 N.E.2d 841,226 Ind. 665
• Parties: BADGLEY v. STATE. BROWN v. STATE.
• Court: Indiana Supreme Court

82 N.E.2d 841

226 Ind. 665

BADGLEY v. STATE.

BROWN v. STATE.

Nos. 28417, 28418.

Supreme Court of Indiana

December 16, 1948

Appeal from Jasper Circuit Court, Robert Thompson, Special judge.

T Ernest Maholm, of Indianapolis, for appellants.

Cleon H. Foust, Atty. Gen., and Merl M. Wall, Deputy Atty. Gen for appellee.

EMMERT Judge.

These are separate appeals from judgments convicting each appellant of murder in the first degree entered upon the verdict so finding each appellant guilty and fixing the penalty at death.

On February 6, 1947, the grand jury of Lake County returned a joint indictment against both appellants for the first degree murder of John Gerka on the 11th day of January 1947. Counsel was appointed for each appellant before arraignment, and to the indictment each entered a plea of not guilty. The venue of the cause was changed from Lake County to Jasper County, upon the granting of the verified motion for change of venue from the county filed by the appellant Badgley, and later a change of venue from the regular presiding judge of the Jasper Circuit Court was had upon the verified motion of the appellant Brown. The examination of the jury on the voir dire was begun on the 14th day of October, 1947, and subsequent proceedings in impaneling the jury and the trial continued until the 22nd day of November, when the jury returned a verdict of guilty as to each appellant.

Upon appeal after a conviction, only the evidence most favorable to the state, and all reasonable and logical inferences that may be drawn therefrom, will be considered by this court, and this rule applies in appeals in capital cases. Keith v. State, 1901, 157 Ind. 376, 61 N.E. 716. From an examination of all the evidence the jury was warranted in finding the crime, and the preceding and subsequent events, occurred as follows:

The appellant Frank Badgley was acquainted with the appellant Robert Oscar Brown, and on January 11, 1947, at about 9:00 o'clock A.M. Badgley in company with other of his relatives was leaving Indianapolis for Chicago by automobile to see another relative who was in the hospital there, all of them riding in an automobile being driven by one of his relatives. At Badgley's suggestion they stopped along East Washington Street in Indianapolis and picked up Brown who was accompanying him. They arrived in Chicago that same evening where they had supper at the home of relatives. Other relatives came to the same house, and after supper Brown and Badgley requested to be driven to Calumet City to see an acquaintance of Brown's. Some of the relatives then drove Brown and Badgley to Hammond, Indiana, where at about 7:30 P.M. the two left the car, which was then driven back to Chicago.

The appellants Brown and Badgley then stole a 1941 Chevrolet automobile by cutting the ignition cable and connecting a jumper wire to by-pass the ignition lock, and drove east on Cleveland Street in Hammond, where they parked the car in front of some vacant lots and waited for an opportunity to change the license plates. There were two guns on the front seat between the appellants, Badgley having a .38 caliber Smith & Wesson 'lemon squeezer' (hammerless) revolver and Brown having a .45 caliber army automatic, both guns being loaded.

There was snow on the ground, snow and ice on the streets, and the atmosphere was clear, with a street light shining about 150 feet east of the scene of the murder. John Gerka, who for some time had been a member of the police force of Hammond, was in uniform, armed, and was showing Donald Cook and Rudolph Mamala, Jr., who had just been appointed to the police department and who had not yet received uniforms or revolvers, the area they would patrol. They were riding in the Hammond Police Department squad car No. 9 which was being driven by Cook. At about 9.00 o'clock P.M. the police officers discovered the stolen Chevrolet as it stood parked with Brown and Badgley occuying the front seat, but drove on by and turned around by using other streets and came back driving east on Cleveland Street, stopping the squad car facing east 5 or 6 feet north of the stolen car, the front end being about even with the middle of the Chevrolet. The headlights on the squad car were on. Officer Gerka left the police car and went to the door of the stolen Chevrolet. The appellant Badgley got out of the Chevrolet and said to Officer Gerka, 'I guess you want to see my driver's license,' to which Gerka answered, 'Yes.' Officer Mamala got out of the squad car and noticed Badgley hunch his shoulders, whereupon Gerka grappled with Badgley and said, 'Rudy, he's got a gun.' Officer Mamala seized Badgley and slammed him up against the car, Gerka having taken Badgley's gun from him. The appellant Brown had gotten out of the Chevrolet from the other side and went around to the rear where he began shooting with the .45 automatic at Gerka. Gerka ducked down in front of the squad car and fired at Brown and said, 'Cook, call for help.' The rapid exchange of fire continued until both guns were empty, but Gerka did not use his service revolver. Gerka then said, 'I'm hit,' and fell to the street. Officer Mamala saw Brown aiming at Gerka, when he released Badgley and dived for Brown, both of them falling on the ice struggling for the gun. The gun flew up in the air and landed about 10 feet away, each attempting to get the gun first. Mamala seized Brown by the coat, which came off, and again seized Brown by a green sweater he was wearing, which also came off. Both continued to struggle for the sum, which was then empty with the slide locked open. Brown managed to hit Officer Mamala over the head with the gun, but Mamala choked and shook Brown until the gun again flew away about 15 feet. Mamala recovered the gun, but Brown by that time was running down an alley to escape. Officer Gerka had been shot through the chest and spinal cord and was dying along the gutter on the north side of the street, and Officer Cook, who had remained behind the wheel of squad car No. 9 and had twice radioed for help, was fatally shot, from which wounds he died two days later.

Other members of the Hammond Police Department soon arrived and Officers Cook and Gerka were removed to the hospital. The two guns, the coat and sweater worn by Brown, and other clothing and articles of the appellants, were recovered by the various members of the police force. The topcoat worn by Badgley, which he had discarded in his flight about 300 yards from the scene, was recovered the following day. Officer Mamala's hands were covered with dirt and blood, and Brown, during the fight, received a cut on the left side of the head from which blood ran on his shirt.

Brown and Badgley escaped bareheaded. The appellant Badgley stole a bicycle in the neighborhood which he rode to the vicinity of a movie theatre which he entered and remained a short time. When he left the movie he hired a taxicab which took him to one of his relatives in Whiting where he stayed the remainder of the night, and rode back to Indianapolis the following Monday with other of his relatives.

The appellant Brown went to the home of some of his friends where he remained all night, and next day borrowed a new shirt and topcoat and went to Chicago. Badgley was arrested at the home of some of his relatives in Indianapolis about midnight January 27th. The appellant Brown went to some relatives near Buffalo, and began working at a filling station and garage there on the 26th of January, and while so working was arrested on January 29th. The entire record in each appeal, which extends through more than 1,100 pages each, has been carefully examined. The trial court did not err in refusing to peremptorily instruct the jury to return a verdict of not guilty as to each defendant, and the verdict is sustained by sufficient evidence and is not contrary to law.

Before pleading to the indictment the appellant Brown filed a separate motion to quash the indictment. The indictment did state a public offense with sufficient certainty. § 9-1129, Burns' 1942 Replacement, Acts 1905, ch. 169, § 194, p. 584; § 9-1127, Burns' 1942 Replacement, Acts 1905, ch. 169, § 192, p. 584; § 9-1126, Burns' 1942 Replacement, Acts 1905, ch. 169, § 191, p. 584; Kennedy v. State, 1935, 209 Ind. 287, 196 N.E. 316. The motion to quash was properly overruled.

After the appellants had each pleaded not guilty to the indictment and after the examination of the jury on the voir dire had proceeded for several days, each of the appellants filed a separate motion for leave of court to withdraw their pleas of not guilty for the purposes of filing a plea in abatement 'for the reason that the Grand Jury of Lake County, Indiana, at the time of the return of the indictment * * * was an illegal Grand Jury, not drawn according to law,' and the appellants separately offered to file a plea in abatement. The motion was overruled and the offer was rejected and overruled. At various times thereafter during the trial the appellants moved the court to reconsider its rulings, which were each refused and overruled. A plea in abatement must precede a plea in bar. Biddle v. State, 1927, 199 Ind. 284, 157 N.E. 280; Cooper v. State, 1889, 120 Ind. 377, 22 N.E. 320; Pointer v. State, 1883, 89 Ind. 255. By the subsequent motions for the court to reconsider its rulings on the matters of abatement made after the jury was sworn to try the cause, it appears that the appellants' contentions were that there was an irregularity in the impaneling of the grand jury in that the names as drawn from the jury box were not spread of record on the order book of the Lake Criminal Court. An irregularity of this nature, if it did exist, was a matter of public record, which could easily have been...