Davis v. State, No. 30915

Docket NºNo. 30915
Citation234 N.E.2d 853, 250 Ind. 54, 13 Ind.Dec. 456
Case DateMarch 22, 1968
CourtSupreme Court of Indiana

Page 853

234 N.E.2d 853
250 Ind. 54
Robert DAVIS, Appellant,
v.
STATE of Indiana, Appellee.
No. 30915.
Supreme Court of Indiana.
March 22, 1968.

[250 Ind. 55] Robert S. McCain, Fort Wayne, for appellant.

John J. Dillon, Atty. Gen., Donald R. Ewers, Asst. Atty. Gen., DueJean C. Garrett, Deputy Atty. Gen., for appellee.

[250 Ind. 56] JACKSON, Judge.

Appellant was charged, by indictment, filed in the Allen Circuit Court, March 25, 1965, with the crime of murder in the second degree.

The indictment, omitting formal parts and signatures, reads as follows, to-wit:

'The Grand Jury of the County of Allen, State of Indiana, upon their oath, do present that Robert Davis on the 6th day of March, 1965, in the County of Allen in the State of Indiana, unlawfully, feloniously, purposely and maliciously, but without premeditation, did kill and murder Clarence Miller, a human being, by then and there unlawfully, feloniously, purposely and maliciously, but without premeditation, shooting at and against the said Clarence Miller, with a certain .38 caliber revolver, loaded and charged with gunpowder and a bullet, and thereby mortally wounded the said Clarence Miller with said bullet, discharged and shot as aforesaid, from which mortal wound the said Clarence Miller then and there died, and so, the Grand Jurors, as aforesaid, upon their oath, as aforesaid, do say and charge that the said Robert

Page 854

Davis did then and there unlawfully, feloniously, purposely and maliciously but without premeditation, kill and murder the said Clarence Miller, in manner and form aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

May 17, 1965, appellant waived arraignment and pleaded not guilty to the charge embodied in the indictment. On the same day appellant waived his right to trial by jury.

Trial was had to the court, without the intervention of a jury, beginning July 28, 1965, and continuing through July 30, 1965. Following the trial, the court found the appellant, Robert Davis, guilty of the offense of murder in the second degree as charged in the indictment.

Thereafter, on August 26, 1965, appellant filed his motion for a new trial, such motion, omitting formal parts and signatures, in pertinent part reads as follows:

'Comes now the defendant in the above entitled cause and respectfully moves the court for a new trial thereon and in support of said motion alleges and says:

1. That the finding of the court is contrary to law.

[250 Ind. 57] 2. That the finding of the court is not sustained by sufficient evidence.

3. That an error of law occurred at the trial, in this, that the court erred in sustaining objections by the State of Indiana to questions put to defendant by his counsel on re-direct examination, which questions, objections, ruling of the court and offer to prove are set out in full in an exhibit, which exhibit is attached hereto, made a part hereof and marked Exhibit A.

WHEREFORE, the defendant prays the court for a new trial in said cause.

EXHIBIT A

EXCERPT FROM TESTIMONY OF ROBERT DAVIS ON JULY 30, 1965

RE-DIRECT EXAMINATION

By Mr. Leas:

Q. You said something about your being scared?

A. I was scared.

Q. Do you have any condition of your body or organs or did you have at that time or since that time or before that time?

Q. Yes.

MR. HELMKE: Objection to the question. Just a minute. He said 'Do you have any condition of the organs' and I don't quite understand what the question is and whether it relates to physical health or mental health.

Q. Physical health. I'm asking if anything happens when he gets scared?

A. Yes, it does.

Q. What?

A. My heart.

Q. How long have you had a heart condition?

MR. HELMKE: Objection. This is medical testimony. He said he had a heart condition.

THE COURT: This is re-direct, Judge. I don't want to eliminate anything that might be important.

MR. LEAS: This is important because this was brought out on cross-examination that he was scared and I want to know about what his condition was at the time of this episode.

[250 Ind. 58] THE COURT: Will counsel come forward, please?

Page 855

(Conference at the bench between the Court and all attorneys)

MR. LEAS: Is there a question before the witness now? Question read by the reporter as follows: How long have you had a heart condition?

MR. HELMKE: And I objected. Is my objection shown?

MR. LEAS: Before the objection was taken may I make an offer to prove? I think that's the rule.

THE COURT: I think the Court rules and then you make your offer, is that not it, sir?

MR. LEAS: No, sir, I'm sorry, and i ask that we may make this offer to prove before the objection is taken.

THE COURT: All right.

MR. LEAS: After the objection is taken but before the Court rules, I think that's the rule, the defendant offers to prove at this time that he has had for two years a heart condition; that when he becomes excited and scared it affects his actions in that he breaks out into a sweat and his heart flutters and this defendant will testify that that happened at the time of this crisis.

MR. HELMAKE: If the Court please, it's strictly self-serving. I suppose any one of us can say the same things when we become excited and scared our heart skips a beat or two. There has been no testimony by a doctor that attended Mr. Davis to this effect. This was not brought out on direct examination and it is not relevant to the issue at hand.

THE COURT: The objection is sustained.'

On August 26, 1965, appellant also filed a Petition for a Writ of Error Coram Nobis along with his motion for a new trial. Such petition reads in pertinent part as follows:

'Comes now the defendant, Robert Davis, and files his petition for a writ of error coram nobis and in support of his petition alleges and says:

1. That on the 6th day of March, 1965, at about 10 o'clock a.m. petitioner was apprehended and placed in custody by officers from the Fort Wayne Police Department, Fort Wayne, Indiana.

[250 Ind. 59] 2. That at that time said officers knew or should have known that this investigation had been narrowed to, and in effect focused upon, this petitioner.

3. That at that time said officers commenced questioning petitioner regarding the facts of a certain alleged commission of a crime, namely homicide, with the sole and expressed purpose of eliciting a confession and statement from petitioner.

4. That during the time of the oral interrogation of petitioner, said petitioner did not have an attorney and did not make a request for same for the following reasons:

(a) Petitioner did not know the name of any attorney at law and did not know who he could call, contact or notify.

...

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4 practice notes
  • Platt v. State, No. 372A156
    • United States
    • Indiana Court of Appeals of Indiana
    • November 2, 1972
    ...P.J., and LOWDERMILK, J., concur. --------------- 1 Tuggle v. State (1969), 253 Ind. 279, 252 N.E.2d 796, Davis v. State (1968), 250 Ind. 54, 234 N.E.2d 853, and Kondrup v. State (1968), 250 Ind. 320, 235 N.E.2d...
  • Buckner v. State, No. 168S16
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1969
    ...of the crime alleged to sustain the verdict. Greenwalt v. State (1965), 246 Ind. 608, 209 N.E.2d 254, Davis v. State (1968), Ind., 13 Ind.Dec. 456, 234 N.E.2d 853; Corbin v. State (1968), Ind., 13 Ind.Dec. 208, 234 N.E.2d 261. Appellant does not show the Court any specific 'inference drawn ......
  • New v. State, No. 968S152
    • United States
    • Indiana Supreme Court of Indiana
    • June 19, 1970
    ...form specific intent, where the crime charged involves a specific intent, that intoxication can be a defense. Davis v. State (1968), 250 Ind. 54, 232 N.E.2d The question of whether or not the degree of intoxication was such as to prevent the appellant from forming a specific intent was ques......
  • Franklin v. State, No. 676S186
    • United States
    • July 21, 1977
    ...issue involves the weight to be given evidence of the credibility of witnesses, it is improper to direct a verdict. Davis v. State, (1968) 250 Ind. 54, 233 N.E2d 642; State v. Patsel, (1960) 240 Ind. 240, 163 N.E.2d 602; State v. Torphy, (1940), 217 Ind. 383, 28 N.E.2d " * * * Although the ......
4 cases
  • Platt v. State, No. 372A156
    • United States
    • Indiana Court of Appeals of Indiana
    • November 2, 1972
    ...P.J., and LOWDERMILK, J., concur. --------------- 1 Tuggle v. State (1969), 253 Ind. 279, 252 N.E.2d 796, Davis v. State (1968), 250 Ind. 54, 234 N.E.2d 853, and Kondrup v. State (1968), 250 Ind. 320, 235 N.E.2d...
  • Buckner v. State, No. 168S16
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1969
    ...of the crime alleged to sustain the verdict. Greenwalt v. State (1965), 246 Ind. 608, 209 N.E.2d 254, Davis v. State (1968), Ind., 13 Ind.Dec. 456, 234 N.E.2d 853; Corbin v. State (1968), Ind., 13 Ind.Dec. 208, 234 N.E.2d 261. Appellant does not show the Court any specific 'inference drawn ......
  • New v. State, No. 968S152
    • United States
    • Indiana Supreme Court of Indiana
    • June 19, 1970
    ...form specific intent, where the crime charged involves a specific intent, that intoxication can be a defense. Davis v. State (1968), 250 Ind. 54, 232 N.E.2d The question of whether or not the degree of intoxication was such as to prevent the appellant from forming a specific intent was ques......
  • Franklin v. State, No. 676S186
    • United States
    • July 21, 1977
    ...issue involves the weight to be given evidence of the credibility of witnesses, it is improper to direct a verdict. Davis v. State, (1968) 250 Ind. 54, 233 N.E2d 642; State v. Patsel, (1960) 240 Ind. 240, 163 N.E.2d 602; State v. Torphy, (1940), 217 Ind. 383, 28 N.E.2d " * * * Although the ......

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