Baker v. State

Decision Date16 July 1973
Docket NumberNo. 672S82,672S82
Citation260 Ind. 618,298 N.E.2d 445
PartiesRoy M. BAKER, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Max Cohen, Cohen & Thiros, Gary, for appellant.

Theodore L. Senak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

Appellant was charged by indictment with first degree murder. The charge was originally filed in Daviess County. Upon application of the appellant, the venue was changed to the Greene Circuit Court. A jury trial resulted in a verdict of guilty of murder in the second degree and a finding that the appellant should be sentenced for an indeterminate period of not less than fifteen nor more than twenty-five years. Accordingly, the appellant was sentenced to the Indiana State Prison for said period.

The record reveals the following evidence in this case:

At about 9:55 P.M. on April 14, 1971, the radio operator for the Washington city police received a telephone call from the appellant stating that the appellant's wife had been hit on the head and was in the garage. Washington police officers responding to the call were taken to the garage by the appellant, who said, 'Look what they've done to my wife'. Mrs. Baker was lying on the floor of the garage with a piece of wire around her neck. Her purse, glasses and some change were near the body and blood was spattered about the floor.

The appellant told police officers that he and his wife had had supper together, and that after supper she had gone to church but that he had stayed home because he was tired, and that he had fallen asleep while watching television. When he awoke, he noticed the garage door was shut. He thought this was odd in that it had been open when he had fallen asleep. Upon investigation, he discovered his wife's body and called police. He did state that he did not touch the body.

Police officers found appellant's jacket on the front seat of a pickup truck in the garage. The jacket had a spot of blood on it. Officers also found some gloves which appellant stated were his and a wet wash rag in the basement of the house.

Appellant's shoes were in the house and were also spotted with blood.

The officers found the decedent's empty billfold about 25 or 30 feet from the back door of the house. Appellant told officers that his wife had money, but not over $40 in her billfold.

Several witnesses testified that the appellant repeatedly said, 'Why did they do it?' However, the witness, Othmar Frey, the brother of the decedent, stated that appellant said, 'Why did I do it?'

Appellant had scratches on his face and on his wrist. He explained the scratches on his wrist by saying they were received when he and his wife had a friendly scuffle prior to her leaving for church, and that the scratches on his face were received when he ran into a door in his haste to get to the telephone after discovering his wife's body.

Everett Beasley, the Sheriff of Daviess County, testified that the defendant told him he got the scratches at work.

There was evidence that the appellant at previous times had made telephone calls from a pay telephone near his home to a Miss Jones for whom he had done some repair work.

Appellant told Washington Police Officer Jessie Tooley that he had a lady friend, but that he hadn't seen her for some time due to Lent.

The appellant had a $1 bill and a $20 bill in his wallet, which were stained with blood.

The wire which was wrapped around decedent's neck bore strands of fiber very similar to the fiber from which the gloves were made.

In the opinion of the pathologist the cause of death was strangulation.

At the trial six witnesses testified as to the good reputation of the defendant for peace and quietude.

All identifiable blood found on and near the scene was type O. Both the appellant and his wife had type O blood.

The appellant first claims the verdict of the jury is not sustained by sufficient evidence and is contrary to law. It is appellant's position that since all of the evidence against the appellant is circumstantial, 'it must be of such conclusive and persuasive force that it tends to point surely and unerringly to the guilt of the accused to such an extent that it excludes every reasonable hypothesis of innocence.' Citing Manlove v. State (1968), 250 Ind. 70, 232 N.E.2d 874, 12 Ind.Dec. 494, and Baker v. State (1957), 236 Ind. 55, 138 N.E.2d 641.

There is no question but what the law in Indiana is as stated by the appellant. We must, therefore, examine the evidence in this case to determine whether or not this case falls within that principle of law. Judge Emmert, speaking for this Court in the Baker case, very ably and completely discussed the principle of law involved and in so doing stated at page 62, 138 N.E.2d at page 645:

'When we carefully examine the cases decided in the long history of this court which have reversed convictions because they were not sustained by sufficient evidence, it is apparent that the court was applying a test that some material allegation had not been proved by substantial evidence so that no reasonable man could say this issue had been proved beyond a reasonable doubt.'

When we analyze the case at bar, there is, of course, no doubt that the decedent was murdered by some one. We then turn to the evidence to see whether or not a reasonable man could say that there was evidence that the appellant was the perpetrator of that crime.

First of all, the appellant had the opportunity beyond a doubt. However, we recognize, as is contended by the appellant, that mere opportunity to commit a crime is not enough to support a conviction. Baker v. State, supra.

In addition thereto, there was evidence from which the jury could reasonably find that the appellant had a motive for killing his wife, namely: the existence of a 'lady friend.' There is, of course, the possibility, as argued by the appellant, that some intruder entered appellant's garage and killed the decedent in the perpetration of a robbery. However, there is evidence from which the jury could reasonably conclude that such an occurrence was improbable for several reasons:

1. Gloves and a wet washcloth, which the jury could reasonably believe were involved in the commission of the crime, were found in a niche in the basement, a most unlikely hiding place for a third person bent on robbery.

2. The fact that a jacket belonging to the appellant was blood spattered and in appellant's truck.

3. The fact that appellant's shoes were blood spattered.

4. That appellant had money in his wallet which was also blood spattered.

5. The fact that appellant himself stated he made no effort upon discovering his wife to determine whether or not she was still alive, but left her body untouched and summoned police.

When this array of facts was presented by the State, the jury had before it proof of each of the material allegations of the indictment from which they could reasonably conclude that it was in fact the appellant who had killed the decedent. As stated in the Baker case, supra, at page 61, 138 N.E.2d at page 644:

"This court cannot weigh evidence, but must determine whether there is substantial evidence of probative value from which a jury could reasonably have inferred that appellant was guilty of the crime."

Appellant next claims the trial court erred in permitting a medical witness to testify as to a comparison of fibers found on the wire which was used to strangle the decedent and on the gloves of the appellant which were found hidden in the basement of his home.

The witness in question was Dr. Latimer Dunn, a pathologist and deputy coroner, who performed the autopsy on the decedent. In the course of his testimony he was questioned concerning the nature of material found on the woven wire cable used to strangle the decedent and asked to compare fiber found on the cable with the gloves found in the basement.

It is true, as contended by the appellant, that the witness was qualified as a medical pathologist and nothing more. However, the record reveals that his testimony was not of a technical nature concerning questioned fibers. His qualification as a pathologist clearly revealed that he was an expert in the use of a microscope. He did use a microscope to observe the fibers. However, he made no attempt to analyze the fibers, but merely stated that the fibers found on the cable and those of which the gloves were made were indistinguishable in appearance and appeared to be of the same substance. This evidence was competent. Any witness may testify as to the appearance of an object observed. See Mandich v. State (1946), 224 Ind. 209, 66 N.E.2d 69. That fact that the witness used a miscroscope to aid him in his observation is little different than if he had used his bifocal glasses. The instrument was merely an aid with which he was familiar to enable him to better observe the fiber.

We cannot agree with appellant's contention that the witness should have first qualified as an expert on fiber before giving his testimony in this regard. While it is true that had be been an expert on fiber and gone into much greater detail of fiber comparison, his evidence would have had much greater weight. However, this is not to say that he could not testify as he did concerning the similar appearances of the fibers. His testimony as given was properly submitted to the jury to be weighed considering the detail or lack of detail of the examination.

The appellant next claims the trial court erred in giving its Preliminary Instruction No. 9, which was also repeated as Court's Final Instruction No. 9, and reads as follows:

'While it is necessary that every essential element of the crime charged against the accused should be proved by the evidence beyond a reasonable doubt, this does not mean that all incidental or subsidiary facts should be proved beyond a reasonable doubt. Evidence is not to be considered in fragmentary...

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    • United States
    • Indiana Appellate Court
    • 7 Octubre 1975
    ...was no admonishment, it is presumed the trial court followed the statute in giving the customary admonition to the jury. Baker v. State (1973), Ind., 298 N.E.2d 445. Thus, even if the admonishment given here was inadequate, it would not be cause for reversal, inasmuch as Merry has not shown......
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