Crickmore v. State

• Decision Date: 18 January 1938
• Docket Number: 26910.
• Citation: 12 N.E.2d 266,213 Ind. 586
• Parties: CRICKMORE v. STATE.
• Court: Indiana Supreme Court

12 N.E.2d 266

213 Ind. 586

CRICKMORE v. STATE.

No. 26910.

Supreme Court of Indiana

January 18, 1938

Appeal from Criminal Court, Marion County; Adolph Schieber, Special judge.

Jesse W. Peden, Clyde C. Karrer, and Alexander Baker, all of Indianapolis, for appellant.

Omer Stokes Jackson, Atty. Gen., and Patrick J. Smith, Deputy Atty. Gen., for the State.

FANSLER Judge.

Appellant together with Harry Peats, Emmett Williams, and Gerald Haygood, was indicted for murder. The indictment is the same under which Harry Peats, appellant in Peats v State, 12 N.E.2d 270, decided at this term, was convicted. Appellant in this case was convicted of voluntary manslaughter at a separate trial.

The errors assigned and presented are that the court erred in overruling appellant's motion for a new trial, and in overruling his motion to quash the indictment.

As to the sufficiency of the indictment against a motion to quash nothing need be added to what has been said in the Peats Case. The indictment is sufficient.

The evidence for the State is substantially the same as in the Peats Case. In addition, there was the testimony of a police officer that Crickmore had made a statement to him in all substantial respects conforming to Haygood's testimony. He testified that Crickmore told him that he had been hired 'to go out and rock trucks of non-Union men.' There was also the testimony of Haygood and two women that Crickmore was in the car with them, and threw 'rocks' through the windshield of the car in which Penny was riding. Appellant's defense was an alibi. He testified that he was not present when the offense was committed; that he was elsewhere.

He complains of the admission of evidence of other crimes. The evidence complained of was substantially the same as that described in the Peats Case. A prima facie case was made, showing that he was a party to a conspiracy or a plan to systematically stone trucks driven by nonunion drivers. The evidence was competent.

Complaint is also made of the admission of testimony concerning the surroundings at the place where the offense was committed, and of the admission of photographs for the purpose of showing the condition of the truck before and after the stones were thrown. We are not impressed with the objections to this testimony, but at most it only tended to prove that stones were thrown, and that one of them inflicted the injury upon Penny from which he died. By his defense, appellant made no contention that Penny had not been killed in the manner charged. His defense was that he had no part in the transaction, and that he was elsewhere. It follows that, even if the evidence had been improperly admitted, it could not prejudice appellant's rights.

One of the causes assigned in the motion for a new trial is that the verdict and judgment are not supported by the evidence. As we understand appellant's contention, it is that, although the intentional and premeditated throwing of stones from an automobile, running at 70 miles an hour, into the windshield of an approaching truck, if such an act is reasonably calculated to produce death, is sufficient evidence of an intention to kill, it is also sufficient to establish premeditation and malice; that, if the jury believed there was an intention to kill, their verdict should have been for murder, and not manslaughter; that, since the verdict was for the lower offense, the jury must have assumed that appellant only intended the unlawful act, consisting of throwing the stones, and that the verdict should have been for involuntary manslaughter. It is difficult to understand how the jury concluded that appellant was guilty of voluntary manslaughter, which implies an intentional killing, since it is clear from the evidence that, if he intended to kill, it was a planned and premeditated killing, which would be murder in the first degree, whereas, if the killing had been unintentional, and only the unlawful act of throwing the deadly missiles had been intentional, it would have been involuntary manslaughter. But it will be seen that the objection to the evidence supporting the verdict is that it is too much, and not that it is too little. In Hasenfuss v. State, 1901, 156 Ind. 246, 252, 59 N.E. 463, 466, it was insisted that no set of circumstances could be imagined which would render it possible to reduce the crime of murder, by means of poison deliberately administered, to that of voluntary manslaughter. The court said: 'It is possibly true, as insisted by counsel for appellant, that it may be difficult to conjecture a case where the crime of manslaughter can be said to be committed by means of administering poison. Be this at it may, the question here involved relates solely to the right or power of the jury, and, when that right or power is once found to exist, the question may be said to be closed. It appears, however, that the jury in the case at bar discovered such a case notwithstanding the assertion of counsel that none, under any circumstances, can be imagined. The evidence is not before us, and hence we are not advised as to its character. The jury, for aught appearing, may possibly have been controlled, as is sometimes the case, more by the impulses of mercy than by the law and the evidence, and thereby have verified, what is frequently asserted, that the hard places of the law are sometimes softened by the humanity of jurors. It follows, for the reasons stated, that the verdict in question is valid.' The evidence is before us here. It is sufficient to sustain the jury's verdict that the killing was voluntary, and, more, it would have been sufficient to sustain a verdict of murder in the first degree, since, if the missiles that caused the death were thrown at all, they were thrown premeditatedly and upon a preconceived plan, and a planned killing cannot but be malicious. Courts have power to set aside a verdict where the evidence is insufficient to sustain it, but no power to set aside a verdict which is sustained by the evidence, because there is no finding of guilt of a higher crime, which the evidence would also have sustained.

The indictment charged that Penny died on March 9th. The evidence showed that he died early in the morning of March 10th. Time is not of the essence of the crime of murder. There are offenses of which time is the essence; where it is an offense to do a thing upon a certain day, but this is not such. Where time is not of the essence, proof of time as charged is not necessary. It is sufficient to show that the crime was committed before the return of the indictment, and within the statute of limitations. It has been held that in a murder case it is sufficient if the indictment shows, and the proof establishes, that death occurred within a year and a day after the injury was inflicted; and that, where the indictment was returned within a year and a day, and it is shown that death occurred before the indictment was returned it is sufficient. Alderson v. State, 1924, 196 Ind. 22, 145 N.E. 572; Shell v. State, 1897, 148 Ind. 50, 47 N.E. 144; Myers v. State, 1889, 121 Ind. 15, 22 N.E. 781; State v. Sammons, 1884, 95 Ind. 22. The proof here shows that the offense was committed on March 7th, and that Penny died early in the morning of March 10th. The indictment charges that he died March 9th. Section 9-1127, Burns' Ann.St.1933, section 2206, Baldwin's Ind.St.1934, provides: 'No indictment or affidavit shall be deemed invalid, nor shall the...