Bash v. State

• Decision Date: 25 September 1970
• Docket Number: No. 869S187,869S187
• Citation: 262 N.E.2d 386,254 Ind. 671
• Parties: Danny BASH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 386

262 N.E.2d 386

254 Ind. 671

Danny BASH, Appellant, v. STATE of Indiana, Appellee.

No. 869S187.

Supreme Court of Indiana.

Sept. 25, 1970.

Rehearing Denied Nov. 16, 1970.

Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Deputy Atty. Gen., for appellee.

HUNTER, Chief Justice.

Appellant was charged by indictment returned by the Marion County Grand Jury with the crime of first degree murder. Upon a plea of not guilty, trial was had by jury and appellant was found guilty of the lesser included offense of second degree murder; sentence was to the Indiana State Prison during life.

This appeal followed the overruling of appellant's motion for new trial. In that motion appellant raised several questions, only three of which are argued on appeal. To facilitate our consideration of those points argued we shall first briefly review that evidence most favorable to the state.

On the evening of September 15, 1967, Larry Barnfield, the deceased, dropped his wife off at the apartment of a friend while on the way to a music rehearsal with a band in which he played. Barnfield, along with several of his friends, proceeded to the house of another band member, one Richard Ash where they remained until sometime around 2:00 A.M. the next morning. According to the testimony of those present, a good deal of beer was consumed by the group during the course of the rehearsal.

As the men arrived back at the parking lot of the apartment complex where the deceased's wife was staying, appellant and a friend Tracy Thompson were just emerging from a nearby drugstore. The deceased thought he recognized appellant as one of a group of boys that had 'jumped' him a few weeks previously. When appellant and Thompson passed the deceased and his friends, a conversation developed between the two groups. After several minutes of general discussion, the deceased succeeded in luring appellant away from the group and proceeded to get into a fight with him in the grass courtyard of the apartment complex.

Appellant was knocked to the ground and while he was lying there, the deceased and one McCane picked up a portable radio and police converter attachment belonging to appellant which they took back to McCane's apartment. After everyone had left the scene, Thompson persuaded the appellant to leave and return to his apartment. Appellant agreed but indicated that he intended to return later to get his radio.

When the appellant returned to the scene several minutes later he was armed with a rifle. By this time most of the men were standing on or near the front porch of McCane's apartment talking and drinking beer. The appellant testified that as he approached the scene he fired a warning shot scattering the group; the deceased jumped behind a nearby tree. The evidence is somewhat confusing as to exactly what happened next. Apparently appellant told the group and the deceased in particular that all he wanted was his radio and he would leave. When no one offered to give the radio back appellant fired a couple more warning shots.

It was at this time that the deceased came out from behind the tree where he had taken cover with, according to appellant's testimony, a broken beer bottle in his hand. Appellant told the deceased to drop the bottle and put his hands in the air. This request was made several times but the deceased kept advancing. As the deceased advanced, appellant retreated attempting to keep the distance between them. The deceased told appellant to lay the weapon down or as he expressed it in the colloquial he would place the weapon up the appellant's anal canal.

Appellant told the deceased to halt one more time but when he failed to do so and was within eight or ten feet, the appellant fired from the hip. The deceased coughed, grabbed his chest and fell to the ground. Appellant immediately fled the scene with his companion Thompson, but returned later and surrendered himself to the police.

As previously indicated, several allegations of error were raised in the motion for new trial which are not argued on this appeal. This court has held on numerous occasions that grounds urged in the motion for new trial not discussed in the argument section of the brief are waived. Brown v. State (1969), Ind., 247 N.E.2d 76; Short v. State (1968), 250 Ind. 459, 237 N.E.2d 258; Waggoner v. State (1949), 227 Ind. 269, 85 N.E.2d 642.

The first point argued by appellant is that the trial court erred in denying his motion for directed verdict at the close of the state's case in chief and at the close of all evidence since there was no showing of premeditated malice.

In view of the fact that appellant was convicted of second degree murder instead of first degree murder, the point argued is of little consequence here. The qestion is, nevertheless, to what extent the failure to direct a verdict as to first degree murder would be prejudicial to appellant's case when submitted to the jury, where the only legally sustainable verdict would be for a lesser included offense. We need not here determine the prejudicial effect of failure to direct a verdict in such a situation however because in our opinion it would have been improper in this case. A directed verdict is only proper where there is a total absence of evidence on some essential issue required to convict, or where the evidence is without conflict and susceptible to only one inference in favor of the accused. Davis v. State (1968), Ind., 239 N.E.2d 601; Hardin v. State (1964), 246 Ind. 23, 201 N.E.2d 333, 202 N.E.2d 164.

Premeditated malice encompasses the intent, consciously conceived, to take a life as well as the opportunity to reflect on such decision. Heglin v. State (1957), 236 Ind. 350, 140 N.E.2d 98; Everett v. State (1935), 208 Ind. 145, 195 N.E. 77. As was noted in the Heglin case, premeditation is a mental condition and must therefore be inferred from external acts or statements. Here, appellant left the scene of his altercation with the deceased only to return several minutes later with a loaded rifle. Warning shots were fired before the shot was fired that actually killed the deceased. Further, the evidence showed that appellant had had prior experience with firearms and was well aware of their dangerous potential. Under these facts there clearly was sufficient evidence on the question of premeditation to go to the jury and therefore the trial court's overruling of appellant's motion for directed verdict was without error.

Appellant also challenges the sufficiency of the evidence as it relates to the element of malice. Essentially it is appellant's argument that there was no intent to take a life, but that appellant's sole purpose in securing the gun was to obtain possession of the radio and converter that had been taken from him during his earlier encounter with the deceased and his friends. It is further noted by appellant that the fatal shot was fired from the hip and did not result from the cold calculated aiming of the weapon.

Malice may be inferred from the use of a deadly weapon under circumstances where it is likely to cause death. Hill v. State (1969), Ind., 251 N.E.2d 429; Maxey v. State (1969), Ind., 244 N.E.2d 650; Warren v. State (1963), 243 Ind. 508, 188 N.E.2d 108; Martin v. State (1957), 236 Ind. 504, 141 N.E.2d 455. Considering the above facts, there clearly was sufficient evidence from which the jury might infer the element of malice.

Finally, it is argued that the state failed in its burden of proof by failing to prove that the bullet found near the body of the deceased was in fact fired from the rifle that was taken from the accused at the time he surrendered himself to the police. Such failure of proof renders the verdict contrary to law. No authority is cited for this proposition, and we fail to see in what way the lack of such proof would be fatal to a conviction for second degree murder. Appellant admitted on the witness stand to having fired a shot at the deceased and that the deceased immediately grabbed his chest and fell to the ground. From these facts the jury was clearly entitled to infer that the appellant did in fact fire the fatal shot. Admittedly the situation would be different if the state had been unable to prove by direct evidence that the appellant fired the gun he had in his possession. Here, however, such fact was shown by other evidence.

For all the foregoing reasons the judgment of the trial court is affirmed.

Judgment affirmed.

ARTERBURN, DeBRULER, and GIVAN, JJ., concur.

JACKSON, J., dissents with opinion.

JACKSON, Judge (dissenting).

I am unable to agree with the determination reached by the majority opinion and dissent thereto.

Appellant was charged by indictment with the crime of 'First Degree Murder'. The indictment in pertinent part reads as follows:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that DANNY BASH on or about the 16th day of SEPTEMBER, A.D. 1967, at and in the County of Marion and in the State of Indiana, did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder LARRY BARNFIELD, a human being, by then and there unlawfully, feloniously, purposely and with premeditated malice shooting at and against the body of the said LARRY BARNFIELD, with a rifle, loaded with gunpowder and metal bullets, then and there held in the hands of the said DANNY BASH, and did then and there and thereby inflict mortal wounds in and upon the body of the said LARRY BARNFIELD, of which mortal wounds the said LARRY BARNFIELD, then and there and thereby died; and so the Grand Jurors aforesaid, upon their oaths aforesaid, do say and charge that the said DANNY BASH, in the manner and form and by the means aforesaid, unlawfully, feloniously, purposely and with premeditated malice did kill and murder the said LARRY BARNFIELD, then and there being contrary to the form of the statute in such case made...