Corbin v. State, 30850

• Citation: 250 Ind. 147,234 N.E.2d 261
• Decision Date: 23 February 1968
• Docket Number: No. 30850,30850
• Parties: Norman L. CORBIN, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 261

234 N.E.2d 261

250 Ind. 147

Norman L. CORBIN, Appellant, v. STATE of Indiana, Appellee.

No. 30850.

Supreme Court of Indiana.

Feb. 23, 1968.

Rehearing Denied April 4, 1968.

C. Thomas Cone, Greenfield, George Hand, New Castle, for appellant.

John J. Dillon, Atty. Gen., of Indiana, Charles J. Deiter and Murray West, Deputy Attys. Gen., for appellee.

ARTERBURN, Judge.

The State of Indiana indicted appellant for murder in the first degree, and after trial the jury found him guilty of murder in the second degree, and the court entered judgment accordingly.

The assignment of errors the appellant filed in the trial court, upon which this appeal is based, is concerned primarily with the sufficiency of the evidence. This consists chiefly of the argument that there is no evidence of malice. Second degree murder is defined by the statute as follows:

'Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, * * *.'

Acts 1905, ch. 169, § 350, p. 584, being Burns' Ind.Stat.Anno. § 10--3404 (1956 Repl.).

The evidence in this case shows that the appellant inflicted wounds and injuries on his daughter on the evening of October 24, 1964, which brought about her death. She died on October 27th of that year. The child was age 21 months at the time of her death.

The evidence showed that the embalmer testified he made an ambulance run to the residence of the appellant and his family on the night of October 27th; that the child was apparently dead at the time. The coroner asked the appellant how the child received the bruises and injuries which were very apparent, and his answer was that he had a terrible temper. Dr. Kirby also testified that at the hospital he found the baby was dead; that the child appeared to be two or three years old; that it had numerous bruises all over its body. He also, when he informed the appellant of the baby's death, asked him how it happened, and the appellant responded: 'Oh, I have a terrible temper.' Dr. Costin, a physician specializing in pathology, also testified. He stated he had performed an autopsy on the child; that there were internal hemorrhages and bruises throughout the body and over almost the entire body surface; that the bruises varied from one to three days in age; that the death was caused by a blunt blow to the abdomen that would have to be of considerable force; that the injuries caused the death over a period of time, rather than suddenly; that there was evidence of blows and abrasions on the right forearm, left leg and hemorrhages in the scalp; and that there were hemorrhages in the right kidney. Other evidence shows that the child, at the time the injuries were inflicted by the father, was crying and apparently irritated him, and that he first slapped it and bruised it. Following this, further blows were administered.

Any one with reasonable judgment would know that one of the blows of the magnitude of any of these numerous blows could have fatally injured this child, which apparently was sick at the time. Where such blows of such magnitude are repeated, any jury would have a right to conclude that the perpetrator intended to kill. Malice as a legal inference may be deducted from a perpetration of any cruel act, and the law presumes an individual intends the consequences of his acts.

In Stice v. State (1949), 228 Ind. 144, 89 N.E.2d 915, the evidence showed that the defendant used his fists to inflict blows on a female, age 46, weighing 125 pounds, with the result that she died from the numerous blows received. This court held that the blows from fists of a mature man inflicted upon one more or less defenseless, constituted evidence of malice and also intent to kill. In the case before us, the disparity in the strength of the appellant in this case and the two year old child is still greater, and any one would know that the blows such as inflicted by the appellant in this case upon the infant would result in its death. Intent to kill may be inferred particularly in view of the relative size, age and strength of the defendant and the victim. The acts of a powerful defendant who continued to beat a victim who was smaller and lying on the ground helpless showed the defendant's intent to kill the decedent. State v. Powell (Ohio App.) 142 N.E.2d 244, 75 Ohio Law Abst. 33. See also: Sadler v. State (Texas Crim.App.), 364 S.W.2d 234; Commonwealth of Pennsylvania v. Buzard (1950), 365 Pa. 511, 76 A.2d 394, 22 A.L.R.2d 846.

In an action for assault with intent to murder with malice arising out of the beating of a three months old child by a defendant father, evidence supported the jury's finding that the defendant acted with malice and intent to kill. Highnett v. State, 170 Tex.Cr.R. 342, 341 S.W.2d 166.

The defendant contends that the court erred in admitting evidence that a few months prior he had been convicted of excessively beating this same child and another child. In answer to his contention that there is no evidence of malice, these prior acts of assault go to prove such mental condition. Courts have held unanimously that prior threats and acts of beating or assault upon an individual may be considered by a jury in determining not only malice, but also premeditation.

In Wahl v. State (1951), 229 Ind. 521, 530, 98 N.E.2d 671, 675, this Court stated that the question of malice and premeditation is a question of fact for the jury, and that the jury had a right to consider all circumstances 'regardless of whether the circumstances occurred before or after the homicide. Malice may be inferred from any deliberate or cruel act by one person against another. * * * In the case now before us, there was direct testimony of a prior threat and a prior assault on the deceased, Louise Woodford. There was evidence, both direct and circumstantial, from which reasonable inferences of purpose and premeditated malice could be drawn by and jury.'

The court did not err in permitting evidence of prior assaults upon this child by the appellant, particularly as recent as that here under the evidence.

It is further argued that since the State introduced the statements and conversations of the appellant that 'I lost my temper', etc., it precludes an inference of intent to kill and negates the State's contention thereby. In other words, the argument is made that because some of the evidence, along with other evidence introduced by the State is favorable to the defendant, that the State is bound thereby and the jury has no right to disregard such evidence and weigh it with other evidence. We have never heard of such a principle of law, nor is any authority cited to support it. Such a principle, if invoked, would deny the jury's constitutional right to weigh the evidence and select such as it desired to believe. We do not believe the State nor a defendant can so handicap a jury in its consideration of the evidence. We point out also that the State or a defendant may in many cases have to use a witness and introduce certain evidence necessary in making out its case, and there may also come into the case other evidence favorable to the opposing side. This does not mean that the party introducing such evidence is bound thereby to the exclusion of the right of the jury to consider all the evidence.

Finally, we may say, we do not believe the law is such that the defendant ought to be able to hide behind the contention 'I lost my temper' in dealing blows of the size and character in this case upon a defenseless infant and escape the verdict of the jury. Common experience and knowledge of jurors tell them that a person may lose his temper and intend to kill. The jury thought that happened in this case from the abundant evidence. The ordinary dictionary definition of 'temper' covers ill-will, spite, hatred, meanness and 'a choleric temper'. A terrible temper or an unreasoning temper of an individual may include malice and even premeditation, as stated in Wahl v. State, supra.

The judgment of the trial court is affirmed.

LEWIS, C.J., and HUNTER, J., concur.

MORE, J., dissents with opinion, in which JACKSON, J., concurs.

Dissenting Opinion

MOTE, Judge.

I respectfully dissent from the majority opinion herein only because I feel it to be my duty to require strict proof of intent by one mentally capable of having intent.

Appellant was indicted for murder in the first degree by a Hancock County Grand Jury and pleaded 'not guilty' to the indictment. The cause was venued to the Henry County Circuit Court, on motion of Appellant, where it was tried by a jury which returned a verdict of guilty of murder in the second degree. A Motion for New Trial was filed and overruled, after which judgment was entered on the verdict and a sentence of life imprisonment was imposed. The indictment, omitting the formal parts, read as follows:

'The Grand Jurors for said State of Indiana, impaneled, charged and sworn in the Hancock Circuit Court to inquire within and for the body of said county of Hancock, upon their oath, charge and present that Norman Lee Corbin and Rose Corbin at said county on the 24th day of October, A.D. 1964, did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder one Anita Corbin, a human being by then and there unlawfully, feloniously, purposely and with premeditated malice, beating the striking the said Anita Corbin with their hands and thereby inflicting a mortal wound in and upon the body of the said Anita Corbin, of which mortal wound the said Anita Corbin then and there languished, and from which mortal wound on the 27th day of October in the year aforesaid, the said Anita Corbin, in the county aforesaid, then and there and thereby died. And so the Grand Jurors aforesaid, upon their oaths aforesaid, do say and charge that the said Norman Lee Corbin and Rose Corbin, in the manner and form and by the means aforesaid, unlawfully, feloniously, purposely and with...