Bivins v. State

• Decision Date: 01 June 1970
• Docket Number: No. 569S101,569S101
• Citation: 258 N.E.2d 644,254 Ind. 184
• Parties: William BIVINS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 644

258 N.E.2d 644

254 Ind. 184

William BIVINS, Appellant, v. STATE of Indiana, Appellee.

No. 569S101.

Supreme Court of Indiana.

June 1, 1970.

Rehearing Denied July 30, 1970.

Frank E. Spencer, Indianapolis, for appellant.

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

ARTERBURN, Judge.

Appellant and three other men were indicted for first degree murder and first degree murder by killing in the perpetration of a felony. The issues were submitted to a jury and appellant was found guilty on both counts and sentenced to life imprisonment.

All four of the men indicted, Smith, Mayberry, McElwain and the appellant, entered pleas of not guilty. Smith and the appellant were tried together. Mayberry and McElwain testified as State's witnesses at the trial.

The facts are briefly these: On the afternoon of November 2, 1967, the appellant stopped by the home of Mayberry. Mayberry asked for a ride to a nearby school. Upon entering appellant's car, Mayberry found McElwain and Smith therein. Appellant started discussing a robbery with McElwain and Smith. Appellant instructed Mayberry to drive the car and directed him to an alley adjacent to a hardware store. Mayberry waited in the car while appellant and the other two men entered the store.

Once in the hardware store, appellant made a purchase. When the clerk opened the cash register to record the sale, he was attacked by the appellant. The appellant called to his companions for assistance. Help came in the form of three rapid gunshots. The clerk fell to the floor wounded. The three men fled the store with the money from the cash register. McElwain testified that as the three of them ran out of the store 'I saw the gun down at Will Smith's side.'

It is argued that there is insufficient evidence to establish the cause of the clerk's death. The argument is that the victim had a history of heart attacks and that there is insufficient evidence to support a finding that he died as the result of the gunshot wounds as charged in the indictment. We disagree for two reasons.

First, we believe there is ample evidence to support a finding that the victim died as the direct result of the wounds inflicted during the robbery. The physician who was in the emergency room of the Marion County General Hospital testified that the victim was received in critical condition; that he had lost a considerable amount of blood from three gunshot wounds, one above the right clavicle, one about mid-chest and one to the left side of the abdomen; that surgery was performed; that the victim was in critical condition as the result of the multiple wounds; and that he died ten days later.

There was further testimony from the victim's personal physician that the decedent had a heart attack in 1962 and another in 1965, but that on November 1, 1967, one day before the robbery and shooting, he had occasion to examine the decedent and found him in 'very satisfactory' condition. There was no 'abnormal physical findings'.

In addition, the physician who performed the autopsy on the decedent testified in pertinent part as follows:

'Q. Now, Doctor, as a result of this autopsy which you performed and your medical experience as a pathologist do you have an opinion as to the cause of death of Forrest Arthur, Jr., Forrest Arthur, I'm sorry?

'A. It is my opinion that Forrest Arthur died of arteriolosclerotic (sic) heart disease due to gunshot wounds.

'Q. Cause by gunshot wounds?

'A. Well, complicated by gunshot wounds.

'Q. Now let me ask you, in your medical opinion would Forrest Arthur have died without those gunshot wounds?

'A. In my opinion he would not have died without the gunshot wounds.

'MR. WILSON: Your witness

'THE COURT: Cross examine, Mr. Taylor.

'CROSS EXAMINATION

'QUESTIONS BY MR. TAYLOR, COUNSEL FOR William Bivins

'Q. Doctor, could you say of certainty that he would not have died, having had previous heart attacks, had he not been shot?

'A. Not with certainty, I couldn't say that for anyone in the room.

'Q. Now suppose that he had been in a scuffle and had been knocked to the--this is a hypothetical question--that he had been in a scuffle with a person and had been knocked to the ground, or the floor, and having been subject to heart seizures heretofore, as has been testified to here in this case, would that in and of itself tend to make his condition more susceptible to death from a heart attack?

'A. It could, yes, sir.

'MR. TAYLOR: I believe that is all.

'THE COURT: Mr. Kern.

'CROSS EXAMINATION

'QUESTIONS BY MR. KERN, counsel for William Smith

'Q. Doctor, do these photographs depict one, two or three gunshot wounds?

'A. Two.

'Q. These two photographs depict two gunshot wounds?

'A. Two.

'Q. These two photographs depict two gunshot wounds?

'A. Yes sir.

'Q. Now is it your testimony that Forrest Arthur could have died from this heart condition without any traumatic experience, that there is a possibility that he could have died from this heart condition without any traumatic experience?

'A. Yes, sir.

'Q. Death could have resulted, that is a possibility?

'A. Yes, sir.

'MR. KERN: We have no further questions, Your Honor.

'THE COURT: Redirect.

'REDIRECT EXAMINATION

'QUESTIONS BY MR. WILSON, deputy prosecutor

'Q. Doctor, was Forrest Arthur a human being?

'A. Yes, sir.

'Q. Also assuming that Forrest Arthur had been given a complete physical examination the day prior to November second, 1967, or the day prior to sustaining the gunshot wounds, could you say with reasonable, and that he passed this physical with the doctor giving him a clean bill of health, so to speak, finding no abnormalities, could you say with reasonable medical certainty that if he died on November twelfth, after sustaining the gunshot wounds, that he died as a result of the gunshot wounds?

'A. It is my opinion that he died of the gunshot wounds.

'MR. WILSON: No further questions.'

(Emphasis added)

Secondly, the appellant is responsible for the death of the decedent if the injury by him contributed to the death of the person injured. The fact that other causes may also have contributed to the death does not relieve the actor of responsibility. Wahl v. State (1951), 229 Ind. 521, 98 N.E.2d 671; Hicks v. State (1937), 213 Ind. 277, 11 N.E.2d 171, cert. denied 304 U.S. 564, 58 S.Ct. 951, 82 L.Ed. 1531; Kelley v. State (1876), 53 Ind. 311. It cannot seriously be argued, in view of the above expert testimony, that there was insufficient evidence from which the jury could infer that the multiple wounds inflicted upon the decedent contributed mediately or immediately to his death.

Appellant further...