Brown v. State
| Decision Date | 17 December 1975 |
| Docket Number | No. 375S55,375S55 |
| Citation | 264 Ind. 40,338 N.E.2d 498 |
| Parties | Johnny Lee BROWN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Nick Senak, Gary, for appellant; Sheldon H. Cohan, Gary, of counsel.
Theodore L. Sendak, Atty. Gen., Joseph J. Reiswerg, Deputy Atty. Gen., for appellee.
Defendant (Appellante was convicted in a trial by jury of murder in the second degree. Ind.Code § 35--1--54--1, Burns § 10--3404 (Supp.1975). His appeal presents three issues:
(1) Sufficiency of the evidence as to the cause of the decedent's death.
(2) Sufficiency of the evidence of intent and malice.
(3) The admission into evidence of testimony given on direct examination by a State's rebuttal witness, which testimony revealed the content of a self-incriminating statement given by the defendant following his arrest.
The evidence adduced at the trial and supporting the verdict of guilty disclosed the following: The decedent died of a gunshot wound received while sitting at a bar in a tavern in Gary, Indiana. The defendant was also a patron of the bar and had departed after having been there for approximately two hours and after having been berated by a female bartender protesting his advance. He returned to the tavern approximately ten minutes later and said 'I told you I would be back,' and fired two shots in rapid succession from a thirty-eight caliber revolver. These shots were fired in the direction of the decedent who fell from the barstool upon which he was seated. Decedent attempted to leave the room through a nearby exit which was locked. He turned around, and while he was in a stooped position with his hands above his head, the defendant advanced two steps, pinpointed the gun upon the decedent and fired a third shot. Other persons present attempted to apprehend the defendant, and he dropped the gun and ran from the tavern. One of the other patrons present recovered the gun and fired a shot into the air in an effort to get the appellant to stop.
An autopsy was performed upon the decedent. Two bullets had struck him, one of which entered his neck and lodged in the shoulder muscles surrounding the clavicle. The other bullet entered his chest, pierced his heart and left lung and exited from his lower back. The trajectory of both bullets was downward. The second shot above mentioned caused decedent's death, but the bullet itself was not recovered. The bullet fired by the first shot aforementioned was recovered but had been damaged to such an extent when it hit the decedent's clavicle tht it could not be determined whether or not both wounds had been caused by the same type of projectile.
ISSUE I. Brown first asserts that the State failed to prove that he caused the death of decedent. He reasons as follows:
(a) Decedent suffered two gunshot wounds.
(b) Only one of these, the chest wound, caused his death.
(c) There was no evidence that the two wounds were caused by the same caliber bullet.
(d) The State's evidence proved only that one shot was fired by defendant directly at decedent.
(e) There was no evidence that this one shot was directed at decedent's chest rather than at his neck.
(f) Therefore, a jury could not find beyond a reasonable doubt that the shot fired by defendant directly at decedent caused the latter's death.
This syllogism is interesting, but not compelling. As Appellant notes, it is generally conceded that three shots were fired inside the tavern. The State's witnesses agreed that all three shots were fired by Appellant. There was no doubt that the cause of death was a gunshot wound. A reasonable inference is, therefore, that however many times decedent was shot, all such wounds were inflicted by Appellant. This conclusion is bolstered by the fact that two witnesses testified that the deceased fell from his barstool, immediately following the firing of the first two shots, indicating that he was hit by one of such shots. A jury could reasonably conclude that Appellant caused the death of decedent, notwithstanding a possibility that he had been hit and killed by the fourth shot which had been fired by another person.
ISSUE II. Defendant next contends that there was an absence of proof
of intent and malice. These elements must be present to support a conviction of second degree murder. However, they need not be shown by the express words of a defendant, but may be inferred from the deliberate use of a deadly weapon in such a manner as likely to cause death. Chatman v. State (1975), Ind., 334 N.E.2d 673; Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686.
The evidence presented in this...
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