Christen v. State, 28604
| Decision Date | 04 January 1950 |
| Docket Number | No. 28604,28604 |
| Citation | 228 Ind. 30,89 N.E.2d 445 |
| Parties | CHRISTEN v. STATE. |
| Court | Indiana Supreme Court |
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.
Appellant was charged with first degree murder by an indictment in five counts. He pleaded not guilty. The issue was submitted 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 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 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 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 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 immediately and died about 12 days later from pneumonia induced by exposure and the beating which she apparently had received.
The appellant was known to the police, as was an automobile which he customarily drove, and was seen by three police officers at different times driving about in his automobile at or about the time the deceased was found and near the place where she was found. Appellant, as a witness in his own behalf, admitted he had been arrested four or five times for disorderly conduct arising out of conduct toward strange women while driving his automobile at night about the streets of Ft. Wayne.
The soldier learned from the newspapers that the deceased had told the police that a soldier had been with her that evening and that the police were looking for such soldier. He reported to the police. He was taken to the place where appellant worked but was unable to identify him as the man who had been in the alley with him. Likewise, he failed to identify him at a later time in Colorado, where the appellant had gone to live, and at another time in Memphis he was shown a picture of Ralph Lobaugh, who, he was told, had confessed the killing of the deceased, and he identified the picture as being a likeness of the man who had led him into the alley with the deceased on March 5, 1945. Later, however, and as a witness at the trial, he identified the appellant as the civilian who had led him in the alley with the deceased on the evening of March 5. Likewise, the woman who drove into the alley and threw her headlights upon the group in the stair entrance, failed to identify the appellant at first, but later did so and testified at the trial that he was the man whom she had seen at the stair entrance and who had left with the deceased. There was evidence that her reputation for morality was bad and that she had been convicted of operating a house of prostitution. Whether or not these two witnesses were telling the truth on the witness stand was for the jury to decide and, the jury apparently having elected to believe them, we must accept their testimony as true, and the question becomes whether or not, assuming the testimony of the soldier and the woman on the witness stand as true, the evidence is sufficient to sustain the verdict, that is whether or not the jury could reasonably have inferred from the evidence outlined above that the appellant was guilty of murder of the deceased.
A jury must believe beyond a reasonable doubt that the accused committed the crime with which he was charged, and where the evidence is circumstantial, as it was in this case, it must be of so conclusive a character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable hypothesis of his innocence. However, this rule is for the guidance of trial courts and juries and should be observed by them. It is not for this court. This court has upon it a duty to consider, not to weigh, the evidence in this case for the purpose of determining whether there is any substantial evidence of probative value from which a jury reasonably could have inferred that the appellant was guilty of the offense charged. Mandich v. State, 1946, 224...
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