Davis v. State, No. 570S116

Docket NºNo. 570S116
Citation271 N.E.2d 893, 257 Ind. 46
Case DateAugust 09, 1971
CourtSupreme Court of Indiana

Page 893

271 N.E.2d 893
257 Ind. 46
Thomas DIVIS, Appellant,
v.
STATE of Indiana, Appellee.
No. 570S116.
Supreme Court of Indiana.
Aug. 9, 1971.

[257 Ind. 47] Bruce E. Bloom, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., Indianapolis, for appellee.

Page 894

ARTERBURN, Chief Justice.

Appellant was charged with the crime of first degree murder and pleaded not guilty by reason of insanity and also entered a plea of not guilty. The jury returned a verdict of guilty of murder in the second degree. Judgment was entered thereon and the appellant was sentenced to life imprisonment in the Indiana State Prison.

On February 17, 1969, appellant went to the home of one Otis Humphries in Fort Wayne, Indiana. The two men argued over the vandalizing of a car. During the argument the appellant pulled a pistol from his pocked and shot Otis Humphries. The shooting was witnessed by Miss Frances Sewell, who testified that she saw the appellant shoot the deceased victim.

Appellant first contends that prejudicial error occurred as a result of the testimony of Police Officer O'Leary, who investigated the shooting. Officer O'Leary testified in rebuttal, as to statements made by the appellant about the shooting, after the appellant had taken the stand in his defense.

In the course of direct and cross-examination of the appellant, he testified that he could not remember much of the events of the evening of the shooting. Specifically, the appellant gave the following responses to questions asked by the appellant's counsel on his direct examination.

[257 Ind. 48] 'Q. Do you remember going to Otis Humphries' house?

'A. No.

'Q. Do you remember being outside Otis Humphries' house that day?

'A. No.

'Q. Do you remember arguing with Otis Humphries?

'A. No.

'Q. What is your first memory?

'A. The only thing that I can remember during that night is, Otis was in his house and I remember him going into his beroom and coming back out, and after then, Francine was standing up there by me, and she started hollering, 'no, no, don't shoot.' Then, she shook like that and I saw Otis laying on the floor * * *'

'Q. Do you remember shooting Otis?

'A. No I don't. I don't even remember hearing the gun going off.'

On cross-examination the appellant gave the following responses to questions asked by the prosecuting attorney.

'Q. You said you remember some things. What things do you remember?

'A. This was what I thought you was talking about before.

'Q. No. I'm talking about the night of February the 17th, 1969 at Otis' apartment.

'A. I don't remember anything.

'Q. Not a thing?

'A. No. only thing I can remember that night after I got there, i guess we was arguing but I don't remember anything that we was arguing about, and Francine was standing there beside me and she grabbed me by the arm and say, Tom, don't but I don't remember, when I looked up Otis was laying on the ground, so, on the floor, so I walked out * * *'

The appellant further testified that the witness, Miss Sewell told him that he had killed or shot Otis Humphries. He also stated that he remembered the squad car coming and getting [257 Ind. 49] into in and being taken to the police station, but remembered no conversation in the squad car with any policeman.

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37 practice notes
  • Stroud v. State, No. 570S107
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1971
    ...Washington v. State, handed down August 9, 1971, Ind., 271 N.E.2d 888; Davis v. State (1971), handed down August Page 846 9, 1971, Ind., 271 N.E.2d 893; Grimm v. State (1970), Ind., 258 N.E.2d 407; Sharp v. State (1970), Ind., 260 N.E.2d 593; Smith v. State (1970), Ind., 260 N.E.2d 558; and......
  • Oregon v. Hass 8212 1452, No. 73
    • United States
    • United States Supreme Court
    • March 19, 1975
    ...(1973); People v. Moore, 54 Ill.2d 33, 294 N.E.2d 297, cert. denied, 412 U.S. 943, 93 S.Ct. 2787, 37 L.Ed.2d 404 (1973); Davis v. State, 257 Ind. 46, 271 N.E.2d 893 (1971); Sabatini v. State, 14 Md.App. 431, 287 A.2d 511 (1972); Commonwealth v. Harris, 364 Mass. 236, 303 N.E.2d 115 (1973); ......
  • State v. Kidd, No. 154
    • United States
    • Court of Appeals of Maryland
    • July 18, 1977
    ...v. Brown, 40 Ill.App.3d 1003, 353 N.E.2d 244, 247 (1976); People v. Hearn, 34 Ill.App.3d 919, 341 N.E.2d 129, 130 (1976); Davis v. State, 257 Ind. 46, 271 N.E.2d 893, 895 (1971). Compare Walls v. State, 279 So.2d 95, 96 People v. Taylor, 8 Cal.3d 174, 104 Cal.Rptr. 350, 501 P.2d 918 (1972),......
  • Hart v. State, No. 272A69
    • United States
    • Indiana Court of Appeals of Indiana
    • August 1, 1972
    ...which support the verdict of the trial court or jury. Washington v. State (1971), Ind., 271 N.E.2d 888; Davis v. State (1971), Ind., 271 N.E.2d 893; Grimm v. State (1970), Ind., 258 N.E.2d 407; Sharp v. State (1970), Ind., 260 N.E.2d 593; Smith v. State (1970), Ind., 260 N.E.2d 558; and Lan......
  • Request a trial to view additional results
37 cases
  • Stroud v. State, No. 570S107
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1971
    ...Washington v. State, handed down August 9, 1971, Ind., 271 N.E.2d 888; Davis v. State (1971), handed down August Page 846 9, 1971, Ind., 271 N.E.2d 893; Grimm v. State (1970), Ind., 258 N.E.2d 407; Sharp v. State (1970), Ind., 260 N.E.2d 593; Smith v. State (1970), Ind., 260 N.E.2d 558; and......
  • Oregon v. Hass 8212 1452, No. 73
    • United States
    • United States Supreme Court
    • March 19, 1975
    ...(1973); People v. Moore, 54 Ill.2d 33, 294 N.E.2d 297, cert. denied, 412 U.S. 943, 93 S.Ct. 2787, 37 L.Ed.2d 404 (1973); Davis v. State, 257 Ind. 46, 271 N.E.2d 893 (1971); Sabatini v. State, 14 Md.App. 431, 287 A.2d 511 (1972); Commonwealth v. Harris, 364 Mass. 236, 303 N.E.2d 115 (1973); ......
  • State v. Kidd, No. 154
    • United States
    • Court of Appeals of Maryland
    • July 18, 1977
    ...v. Brown, 40 Ill.App.3d 1003, 353 N.E.2d 244, 247 (1976); People v. Hearn, 34 Ill.App.3d 919, 341 N.E.2d 129, 130 (1976); Davis v. State, 257 Ind. 46, 271 N.E.2d 893, 895 (1971). Compare Walls v. State, 279 So.2d 95, 96 People v. Taylor, 8 Cal.3d 174, 104 Cal.Rptr. 350, 501 P.2d 918 (1972),......
  • Hart v. State, No. 272A69
    • United States
    • Indiana Court of Appeals of Indiana
    • August 1, 1972
    ...which support the verdict of the trial court or jury. Washington v. State (1971), Ind., 271 N.E.2d 888; Davis v. State (1971), Ind., 271 N.E.2d 893; Grimm v. State (1970), Ind., 258 N.E.2d 407; Sharp v. State (1970), Ind., 260 N.E.2d 593; Smith v. State (1970), Ind., 260 N.E.2d 558; and Lan......
  • Request a trial to view additional results

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