Brown v. State
| Decision Date | 28 December 1978 |
| Docket Number | No. 977S658,977S658 |
| Citation | 383 N.E.2d 1029,270 Ind. 177 |
| Parties | Rudolph BROWN, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Kenneth R. Cady, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was convicted of second degree murder, Ind. Code § 35-1-54-1 (Burns 1975) repealed October 1, 1977, in the killing of Annetta Russ. On appeal he challenges the sufficiency of the evidence of malice and purpose.
Appellant and Ms. Russ shared a residence in Indianapolis. On the night of November 22-23, they had one or two guests in their home with whom they drank some vodka. Later than night appellant and Ms. Russ began to argue over some undisclosed personal matter. Ms. Russ went downstairs and talked with Paul Robinson, the remaining guest. Appellant came downstairs and struck Ms. Russ with his fist, knocking her down. He left and returned with a sawed-off shotgun. Appellant cocked the gun's hammer, and sat by Ms. Russ. They continued to argue, and apparently pulled and shoved one another. During most of the argument appellant pointed the weapon at the ceiling; after about two minutes he leveled it at her chest. Shortly thereafter the gun discharged, killing Annetta Russ. Robinson told appellant that he was going to call the police. Appellant began to disassemble the shotgun and discard the parts.
When the police arrived they found the stock and barrel of the shotgun and a spent shotgun shell casing lying in the yard. Appellant gave a statement to the investigating detective, saying that he had shot Ms. Russ accidentally; the gun discharged when he tripped coming down the stairs.
Appellant testified that he did not know that the shotgun was loaded, did not remember pulling back the hammer, and did not pull the trigger. There was evidence of appellant's remorse after the shooting.
The elements of second degree murder were (1) that the accused killed a human being; (2) purposely; and (3) with malice. Feggins v. State, (1976) 265 Ind. 674, 359 N.E.2d 517, 520.
The element of purpose has been defined thus:
"An act is done purposely, if it is willed, is the product of a conscious design, intent or plan that it be done, and is done with an awareness of probable consequences." McKinstry v. State, (1975) 264 Ind. 29, 35, 338 N.E.2d 636, 640.
Malice is defined as follows:
" Shackleford v. State, (1976) 264 Ind. 698, 349 N.E.2d 150, 154; McKinstry v. State, (1975) 264 Ind. 29, 338 N.E.2d 636, 640.
The often stated rule that malice may be inferred from the intentional use of a deadly weapon in a manner likely to cause death or great bodily harm, White v. State, (1976) 265 Ind. 32, 349 N.E.2d 156, 160, is merely an alternative phrasing of the same rule." Feggins v. State, s...
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