Callahan v. State, No. 30286

• Docket Nº: No. 30286
• Citation: 201 N.E.2d 338, 246 Ind. 65
• Case Date: September 29, 1964
• Court: Supreme Court of Indiana

Page 338

201 N.E.2d 338 246 Ind. 65 Michael T. CALLAHAN, Appellant,
v.
STATE of Indiana, Appellee. No. 30286. Supreme Court of Indiana. Sept. 29, 1964.
Rehearing Denied Dec. 7, 1964.

[246 IND 66]

Page 339

Albert W. Ewbank, Joseph T. Mazelin, Indianapolis, for appellant.

[246 IND 67] Edwin K. Steers, Atty. Gen., Donald L. Adams, David Wedding, Deputy Attys. Gen., for appellees.

ACHOR, Chief Justice.

Appellant was convicted of first degree murder in two counts, and was sentenced to death. The first count of the indictment charged him with murder in the first degree. Count Two charged him with unlawfully and feloniously killing one Edward G. Byrne in the perpetration of a burglary.

The motion for new trial, which was verified, asserts a multitude of grounds in support thereof. Those which are supported by substantial argument to this court and therefore warrant our consideration, are as follows:

1. That the finding of the jury was not sustained by sufficient evidence on either count of the indictment.

2. Error of the court in the conduct and supervision of the trial.

3. Error in giving the court's instruction No. 37.

4. That the room in the jail where appellant and his attorney held a conference was 'bugged' so that others could eavesdrop on their conversations.

5. That the court, on ordering the witnesses separated, failed to instruct them not to discuss their testimony with anyone else.

In his brief appellant engaged in a lengthy discussion in support of the contention that the verdict is not supported by sufficient evidence. However, it is our observation that the evidence discloses that the verdict is supported by substantial evidence of probative value on each essential issue, under which circumstances this court may not, on appeal, disturb the verdict of the jury. Schlegel v. State (1958), [246 IND 68] 238 Ind. 374, 150 N.E.2d 563; Yarber v. State (1962), 242 Ind. 616, 179 N.E.2d 882.

The evidence supports the fact that on Sunday morning, April 16, 1961, appellant and two companions were seen under suspicious circumstances near the Hilltop Tavern in the suburbs of the city of Indianapolis. Their conduct was reported to the sheriff of Marion County, and officer Edward G. Byrne went to the scene for the purpose of making an investigation. By the time he arrived, the tavern had been burglarized and the appellant and his companions

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were observed leaving the scene in an automobile. Officer Byrne apprehended them for the purpose of interrogation. He brought the driver of their car to the side of his patrol car where, while sitting under the steering wheel of his car, he took down information from the license of the driver of the other vehicle. During this time appellant stood directly behind the getaway car so as to prevent the officer from taking down the license plate number of that car. Finally, at the officer's insistence, appellant stepped away from the other automobile and walked to the side of the patrol car. He then thrust a gun through the open window of the officer's car, and said: 'Forget it--you're dead,' and proceeded to fire several shots at close range into the body of the officer killing the officer. Thus appellant's guilt under Count One of the indictment was clearly established.

Appellant, however, vigorously urges that the evidence was not sufficient under Count Two. In support of this contention he argues first that at the time of the shooting the offense of burglary had ceased.

It is appellant's contention that he and the other participants who had burglarized the Hilltop Tavern had been frightened away from the scene by the burglar alarm, that at the time of the murder they had merely returned to the scene for the purpose of retrieving[246 IND 69] an ax and other effects which they had previously abandoned. Therefore, appellant contends that the shooting of the decedent was an act independent of the burglary.

However, upon examining the evidence, we conclude that the acts of the participants in the burglary in immediately thereafter returning to retrieve the tools used and thus removing evidence of their guilt was, in fact, a part of the res gestae, and that their attempt to effectuate an escape from the scene was but a final link in their unlawful endeavor. Commonwealth v. Almeida (1949), 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183; State v. Adams (1936), 339 Mo. 926, 98 S.W.2d 632, 108 A.L.R. 838; Conrad v. State (1906), 75 Ohio St. 52, 78 N.E. 957.

Appellant's brief cites New York cases, e. g., People v. Marwig (1919), 227 N.Y. 382, 125 N.E. 535, in support of his contention that the felony was completed or abandoned at the time of the killing. Such an argument has been rejected, however, by this court which has adopted the res gestae rule rather than the New York doctrine of completion. See: Neal v. State (1938), 214 Ind. 328, 14 N.E.2d 590, 15 N.E.2d 950; Bissot v. State (1876), 53 Ind. 408.

Appellant further contends that the proof was insufficient as to Count Two of the indictment by reason of a variance between the charge and the evidence with regard to the ownership of the Hilltop Tavern which was burglarized. In this assertion, appellant relies upon the fact that the indictment stated that the Hilltop Tavern...