Christen v. State, No. 28604

Docket NºNo. 28604
Citation228 Ind. 30, 89 N.E.2d 445
Case DateJanuary 04, 1950
CourtSupreme Court of Indiana

Page 445

89 N.E.2d 445
228 Ind. 30
CHRISTEN

v.
STATE.
No. 28604.
Supreme Court of Indiana.
Jan. 4, 1950.

[228 Ind. 32] R. C. Parrish, Ft. Wayne, Robert Parrish, Ft. Wayne, James P. Murphy, Ft. Wayne, Ralph Miller, Ft. Wayne, Giles J. Pierre, Ft. Wayne, for appellant.

J. Emmett McManamon, Atty. Gen., Charles F. O'Connor, Deputy Attn. Gen., Merl M. Wall, Deputy Atty Gen., for appellee.

YOUNG, Judge.

Appellant was charged with first degree murder by an indictment in five counts. He pleaded not guilty. The issue was submitted

Page 446

to a jury, which convicted him of second degree murder. Judgment was entered upon the verdict and appellant was sentenced to the State prison for life. He filed a motion [228 Ind. 33] for a new trial, the overruling of which is the only error assigned here. By the motion for a new trial the sufficiency of the evidence, the validity of certain instructions and alleged error of the court in admitting and refusing to admit certain testimony are presented.

The woman, alleged to have been murdered, died on March 17, 1945. The indictment was returned on November 8, 1948, and appellant was arrested on that day in Denver, Colorado. At the time of the trial he was 38 years old. He was born in Ft. Wayne and had lived there continuously until he moved to Denver with his mother in June, 1947.

In passing upon the sufficiency of the evidence, we may not weigh same, but if there is any evidence, or any reasonable inference from any evidence, upon which the jury could have found the appellant guilty of second degree murder, we must accept the jury's finding. There was no direct evidence of appellant's guilt. It is our duty, however, to consider the evidence for the purpose of determining whether there is circumstantial evidence of probative value to sustain the verdict. In doing this, we will look only to the evidence most favorable to the State and to facts as to which there is no conflict.

On March 5, 1945, a soldier from a nearby military station came into Ft. Wayne, Indiana, and found his way from one tavern to another until in the third one visited he met a young woman whom we will call the deceased. He had drunk several bottles of beer and she was very intoxicated before he encountered her. She left the tavern and the soldier followed her. After the soldier caught up with the deceased, he walked with her only a short distance when she fell to the ground. He picked her up and had his arm around [228 Ind. 34] her waist, supporting her as they walked along the street. At this point a civilian, afterwards identified by the soldier as the appellant herein, whom the soldier had seen at the door of the tavern as he left, came up and took liberties with the deceased and asked the soldier what he was going to do with her. The soldier told him he was going to take her home. The civilian told him not to do that but to take her back in a nearby alley and the civilian undertook to show the soldier the way to the alley. They proceeded down the alley just a short distance to a stairway entrance where they laid the deceased upon the stairs. In this situation the civilian raised the deceased's clothing to her waist and told the soldier to proceed.

The deceased was so drunk that she was only half conscious and the civilian, as the soldier leaned over her, reached over the soldier's shoulder and slapped her twice to wake her up and tore her dress from her left shoulder. While the soldier was crouched over the deceased, an automobile, with a woman driving, drove into the alley and its headlights were thrown upon the stair entrance. The soldier jumped up and ran as he adjusted his clothing. The civilian, afterward identified by the driver of the automobile as the appellant herein, also ran but returned and talked with the woman in the automobile. The soldier was not seen again that evening, but the civilian walked to the stair doorway where the deceased was lying and said, 'Drunk again, bitch', and led her away. That was at about 11 p. m. on March 5. At about that time a passerby saw a man, whom he identified as the appellant, emerging from the alley, where the foregoing happenings occurred with a woman. He testified that they crossed the street and entered the same alley on [228 Ind. 35] the opposite side of the street, and when they were in the alley the man roughly pushed the woman against the building at one side. At about 3 a. m., on March 6, the deceased was found by a night watchman on his round groaning and lying nude in the alley which the passerby said he had seen appellant and a woman enter at 11 o'clock, about four hours before. She was battered and bruised and lacerated and there were indications that she had been kicked or stamped upon by some one. The merchant policeman

Page 447

had passed through the alley, where she was found, at about 12:45 a. m. on the morning of March 6, but did not see or hear her. It appeared, however, that she was found in an offset of the alley and the merchant policeman testified that he used his flashlight only at such buildings as he was supposed to check and that there could have been people in dark places of the alley that he would not have seen in the ordinary course of his inspection. The deceased was taken to a hospital...

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48 practice notes
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...that appellant was guilty of the crime.' Stice v. State, 1950, 228 Ind. 144, 149, 89 N.E.2d 915, 917. See also Christen v. State, 1950, 228 Ind. 30, 39, 40, 89 N.E.2d 445; Mattingly v. State, 1952, 230 Ind. 431, 438, 104 N.E.2d 721; Hansen v. State, 1952, 230 Ind. 635, 639, 106 N.E.2d 226; ......
  • Brown v. State, No. 29661
    • United States
    • Indiana Supreme Court of Indiana
    • December 17, 1958
    ...Ind. 569, 575, 70 N.E.2d 27. Nor can a finding be based upon mrer suspicion, possibility, guess or conjecture. Christen v. State, 1950, 228 Ind. 30, 40, [239 Ind. 215] 89 N.E.2d 445; Todd v. State, 1951, 230 Ind. 85, 90, 101 N.E.2d There is no evidence here that the victim had any money on ......
  • Yessen v. State, No. 28601
    • United States
    • Indiana Supreme Court of Indiana
    • May 24, 1950
    ...a verdict or finding of guilty. Rhoades v. State, 1946, 224 Ind. 569, 572, 575, 70 N.E.2d 27, supra; Christen v. State, Ind.Sup.1950, 89 N.E.2d 445, 448; Wood v. State, 1934, 207 Ind. 235, 238, 192 N.E. 257; Robertson v. State, 1934, 207 Ind. 374, 379, 192 N.E. 887; Patterson v. State, 1921......
  • Shipman v. State, No. 29956
    • United States
    • Indiana Supreme Court of Indiana
    • June 26, 1962
    ...Ind. 252] with the innocence of the prisoner.' Beavers v. The State, 1877, 58 Ind. 530, 537.' See also: Christen v. State (1950), 228 Ind. 30, 89 N.E.2d Furthermore, in support of this count of the affidavit, there is evidence that on a former occasion the appellant had spoken to a girl who......
  • Request a trial to view additional results
48 cases
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...that appellant was guilty of the crime.' Stice v. State, 1950, 228 Ind. 144, 149, 89 N.E.2d 915, 917. See also Christen v. State, 1950, 228 Ind. 30, 39, 40, 89 N.E.2d 445; Mattingly v. State, 1952, 230 Ind. 431, 438, 104 N.E.2d 721; Hansen v. State, 1952, 230 Ind. 635, 639, 106 N.E.2d 226; ......
  • Brown v. State, No. 29661
    • United States
    • Indiana Supreme Court of Indiana
    • December 17, 1958
    ...Ind. 569, 575, 70 N.E.2d 27. Nor can a finding be based upon mrer suspicion, possibility, guess or conjecture. Christen v. State, 1950, 228 Ind. 30, 40, [239 Ind. 215] 89 N.E.2d 445; Todd v. State, 1951, 230 Ind. 85, 90, 101 N.E.2d There is no evidence here that the victim had any money on ......
  • Yessen v. State, No. 28601
    • United States
    • Indiana Supreme Court of Indiana
    • May 24, 1950
    ...a verdict or finding of guilty. Rhoades v. State, 1946, 224 Ind. 569, 572, 575, 70 N.E.2d 27, supra; Christen v. State, Ind.Sup.1950, 89 N.E.2d 445, 448; Wood v. State, 1934, 207 Ind. 235, 238, 192 N.E. 257; Robertson v. State, 1934, 207 Ind. 374, 379, 192 N.E. 887; Patterson v. State, 1921......
  • Shipman v. State, No. 29956
    • United States
    • Indiana Supreme Court of Indiana
    • June 26, 1962
    ...Ind. 252] with the innocence of the prisoner.' Beavers v. The State, 1877, 58 Ind. 530, 537.' See also: Christen v. State (1950), 228 Ind. 30, 89 N.E.2d Furthermore, in support of this count of the affidavit, there is evidence that on a former occasion the appellant had spoken to a girl who......
  • Request a trial to view additional results

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