Breedlove v. State, 29217

• Court: Supreme Court of Indiana
• Citation: 134 N.E.2d 226,235 Ind. 429
• Docket Number: No. 29217,29217
• Parties: Willie BREEDLOVE, Appellant, v. STATE of Indiana, Appellee.
• Decision Date: 17 May 1956

Page 226

134 N.E.2d 226

235 Ind. 429

Willie BREEDLOVE, Appellant, v. STATE of Indiana, Appellee.

No. 29217.

Supreme Court of Indiana.

May 17, 1956.

Emerson J. Brunner and Robert D. Ellison, Shelbyville, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Richard M. Givan, Robert S. Baker, Deputy Attys. Gen., for appellee.

BOBBITT, Chief Justice.

Appellant was indicated for murder in the first degree, tried by jury, found guilty as charged and sentenced to the Indiana State Prison for life.

The sole error here assigned is the overruling of the motion for a new trial.

We shall consider only those alleged errors discussed and urged in the argument section of appellant's brief. In the order presented they are:

First: Appellant asserts that the trial court erred (a) in overruling his oral motion to withdraw his plea of not guilty for the purpose of filing a plea in abatement; and (b) in refusing him permission to file a plea in abatement.

A plea in abatement cannot be filed after a plea of not guilty has been entered, unless the plea of not guilty is first withdrawn. The withdrawal of a plea of not guilty for the purpose of filing a plea in abatement is within the discretion of the trial court. Stevens v. State, 1952, 230 Ind. 518, 520, 105 N.E.2d 332; Cooper v. State, 1889, 120 Ind. 377, 380, 22 N.E. 320.

Hence, when appellant's motion to withdraw his plea of not guilty was overruled, the trial court properly refused permission to file his plea in abatement. The question then which determines the entire issue pertaining to appellant's attempt to file a plea in abatement is--Did the court abuse its discretion in overruling his motion to withdraw the plea of not guilty?

The rule pertaining to permission to withdraw a plea of not guilty and interpose a plea in abatement, which governs this court in our consideration of the question here on appeal is ably stated in Mack v. State, 1932, 203 Ind. 355, 365, 180 N.E. 279, 282, 83 A.L.R. 1349, as follows:

'* * * but the granting of the motion is within the sound discretion of the court, and the inquiry on appeal must be as to whether the court by its action abused that discretion. It is proper, in that connection, to take into account the question of the delay already had at the time the motion was filed, the question of cause shown, and the question as to whether or not the substantial rights of the appellant were prejudiced by the court's ruling.'

The record discloses that the motion to withdraw was not filed for a period of 17 months from the date on which the not guilty plea was entered. Appellant attempts to excuse this delay by stating in his brief that, 'While an attorney, appointed by the court to represent a pauper, owes his client certain duties, Appellant feels that such duties do not anticipate that such attorney should risk the chance of contracting tuberculosis in coming in personal contact with his client, while the client is so afflicted.'

We do not consider this a sufficient reason for such delay, especially when appellant's attorneys contacted him personally on more than one occasion during the 17 month period, including his appearance in court in company with them on a hearing on petition to be admitted to bail.

In the case at bar, as was true in Mack v. State, supra, there is nothing in the record to show what facts were presented to the trial court in support of the motion to withdraw the plea of not guilty and here, as this court there held, the presumption of law 'is in favor of the court's ruling.' On the record before us it will be presumed that appellant failed to show sufficient cause for the withdrawal of his plea of not guilty.

There is no showing that appellant's substantial rights were in any way prejudiced by the trial court's ruling. The record sustains this conclusion because the motion to withdraw failed to show sufficient ground therefor. Mack v. State, supra, 1932, 203 Ind. 355, 365, 180 N.E. 279, 83 A.L.R. 1349.

For the reasons above stated we find no abuse of discretion by the trial court. Badgley v. State (Brown v. State), 1949, 226 Ind. 665, 672, 82 N.E.2d 841; Cooper v. State, supra, 1889, 120 Ind. 377, 380, 22 N.E. 320; Farlow v. State, 1925, 196 Ind. 295, 301, 142 N.E. 849.

Second: Appellant further asserts that one finger print found at the scene of the crime was not his and this is proof of his nonexclusive opportunity to commit the crime, hence, under the rule as stated in Christen v. State, 1950, 228 Ind. 30, 40, 89 N.E.2d 445, and Myers v. State, 1954, 233 Ind. 66, 116 N.E.2d 839, this fact is not sufficient to support a conviction. We agree with appellant that opportunity to commit a crime is not enough to support a conviction. However, the state in the case at bar does not rely upon opportunity alone. The opportunity as established by the presence of appellant's finger prints at the place and time of the crime is supported by other evidence of probative value sufficient to support a finding of guilty. This was not the situation in the Christen and Myers cases, and they are not applicable under the factual situation in this case.

Third: We next consider whether the verdict of the jury is sustained by sufficient evidence. A review of the evidence most favorable to appellee discloses the following:

At about 2:30 a. m. on the morning of September 11, 1946, a nurse and her aid, working on the second floor of the Rotary Convalescent Home at the Indiana University Medical Center on Michigan Street in the City of Indianapolis, Indiana, heard screaming and other noises coming from the first floor. The nurse went downstairs to see what was going on, and found the deceased, Alberta Green, lying in the hallway beside the treatment room on the first floor. She then called the night watchman and when he came they went over to the deceased and, after examining her, the nurse then went and stood at the door while the night watchman went outside to look around the grounds. While standing at the door she heard a noise behind her and, upon looking around, saw a man dragging the deceased through a doorway into the dining room. She screamed for the policeman and by the time he had returned the man had disappeared.

This witness testified, in part, as follows:

'Q. Now, you tell the July as much [as] you can about the appearance of this man you saw dragging Miss Green. A. Well, I saw him framed in the doorway and I would judge he was about medium build. The thing that I remember most was a brown felt hat, what you call a snap brim, I believe, with a handkerchief tied around his face. That's the way I remember him.

'Q. Can you remember anything about his clothing, as to whether it was light or dark? A. It was evidently dark.

'Q. Do you know whether or not he was a colored man? A. Yes, definitely.

'Q. Could you tell us anything about his features at all? A. The profile, as I saw, was fairly smooth from the nose down, or from the forehead down to the nose. That's all I saw.

'Q. You have seen the defendant in this case before? A. Yes, sir.

'Q. State whether or not the defendant resembles the man that you saw. A. He does.

'Q. And after this night, where did you first see the defendant? A. On July the 5th, 1952.

'Q. And where was that? A. In Indianapolis.

'Q. And precisely where? A. In the line-up.

'Q. Just tell what you saw there that time. A. There were six men, six colored men in the line-up and we were to pick out which we thought would be the one most likely to fit in with the picture we had in mind.

'Q. What did you do? A. Picked out this defendant.

'Q. Now, in the line-up and prior thereto, was his name given to you at all? A. No, sir.

'Q. By no one? A. No, sir.

'Q. In the line-up, did men respond to different names? A. Oh, yes. I knew his name was Breedlove, but he didn't give his name in the line-up as being Breedlove.

'Q. He gave some other name? A. Yes, sir.

'Q. Do you recall what the other name was? A. It was Billy, like Billy the Kid, Billy Kahn, or something like that.

* * *

* * *

'Q. Now, I believe, I forgot to ask you what you observed of Miss Green's physical condition when you saw her on the floor. A. She was unconscious.

'Q. Any bruises or blood or cuts or bumps or anything? A. Oh, yes. She was quite badly beaten. There was a bump on her head, on the forehead and on the back of her head.

'Q. Did you touch her skull to see whether it had been broken or dented? A. No, I didn't check that. It was bruised, her forehead was quite bruised.

'Q. And did you stay there until she died? A. Yes, sir.'

The student nurse who was on duty on the first floor with Miss Green at the time she was attacked testified that about 3 o'clock a. m. on September 11, 1946, she was sitting at the desk where the two main halls converge when she an Miss Green heard a noise as though someone had knocked papers off of a table, and they went to investigate. They inspected all the rooms on the first floor except the dining room where there were no patients. They found nothing wrong and resumed their duties. The witness then sat down at a desk to do some chart work and Miss Green went to get some medication for one of the patients who was in the hallway. When the deceased went into the treatment room to get the medication, the witness heard a loud thud and upon turning immediately to look saw Miss Green lying on the floor. She went over immediately to assist her, and as she did so was struck a blow from behind. When she attempted to get up she was struck again several times until she was knocked completely down, and while lying flat on her back on the floor she saw a man standing over her with a club raised ready to strike her in the face. She rolled over on her side, grabbed his foot and tripped him and was able to make her escape to the second floor.

This witness described the man as being a large burly-type man, with a large nose or prominent cheek bones, a little under six feet tall, with large...