Dunn v. State, No. 1171S319

Docket NºNo. 1171S319
Citation293 N.E.2d 32, 260 Ind. 142
Case DateMarch 06, 1973
CourtSupreme Court of Indiana

Page 32

293 N.E.2d 32
260 Ind. 142
James W. DUNN, Appellant,
v.
STATE of Indiana, Appellee.
No. 1171S319.
Supreme Court of Indiana.
March 6, 1973.

[260 Ind. 143] Michael J. McDaniel, Donald R. Forrest, New Albany, for appellant.

Theodore L. Sendak, Atty. Gen., John McArdle, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

Defendant-Appellant, James W. Dunn, was charged by indictment with first degree murder in the death of Morris Willhite. He was found guilty after trial by jury in the Circuit Court of Floyd County and received a sentence of life imprisonment.

In seeking a reversal of his conviction, Appellant maintains inter alia, that the jury's verdict was not sustained by sufficient evidence. When reviewing the sufficiency of the evidence, this Court will neither weigh the evidence nor determine the credibility of witnesses. Lee v. State (1972), Ind., 286 N.E.2d 840; Wardlaw v.

Page 33

State (1972), Ind., 286 N.E.2d 649; Capps v. State (1972), Ind., 282 N.E.2d 833; Gunn v. State (1972), Ind., 281 N.E.2d 484. Only that evidence most favorable to the Appellee and all reasonable inferences to be drawn therefrom will be considered. Id. If there is substantial evidence of probative value sufficient to establish every material element of the crime beyond a reasonable doubt, the verdict will not be disturbed. Id. A brief chronological review of only that evidence favorable to the State reveals the following facts.

On Tuesday, November 3, 1970, Appellant borrowed a .22 caliber rifle from Jack Joe Lynch, a neighbor and co-[260 Ind. 144] worker. The weapon could be operated only as a single shot rifle since its ammunition clip was missing.

On Thursday, November 5, 1970, the deceased, Morris Willhite, failed to return from one of his customary walks in the Silver Creek area near his home in Floyd County. Late that same afternoon, Appellant gave his wife $21, claiming that it was earnings from a job; however, Appellant was, in fact, unemployed at that time.

On Friday, November 6, 1970, Edward Cassady, who was fishing on Muskrat Creek in the Silver Creek area near Clarksville, Indiana, engaged in a conversation with a man who identified himself as James Dunn. Cassady testified that Dunn left the area where he was fishing but returned 10 to 15 minutes later, armed with a small caliber rifle, and demanded Cassady's billfold. When Cassady refused to turn over his billfold, he was attacked by Dunn who began beating him about the face and head with the rifle butt. Despite the fact that he ultimately suffered both a fractured skull and a bullet wound in the head, Cassady never lost consciousness and testified that he felt his billfold being removed from his pocket.

At approximately the same time that Cassady was being attacked and robbed, the deceased's wife, brother, sister-in-law and niece were driving along the backwaters of the Ohio River in the Silver Creek area in search of Willhite who then had been missing for one day. They testified that they observed from their moving automobile, at a distance of 60 feet, a man, subsequently identified by them as Appellant, standing over another man (presumably Cassady) who was lying upon the ground. The man who was standing appeared to be holding a rifle. Although the deceased's niece testified that she stated, at the time she observed this scene, that she thought that the man who was standing may have shot the other man, the deceased's relatives proceeded without stopping and did not notify the police of what they had seen until [260 Ind. 145] several days later when someone at the funderal home mentioned the attack upon...

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22 practice notes
  • Ruetz v. State, No. 175S22
    • United States
    • March 9, 1978
    ...line of cases holding insufficient to support a conviction evidence which merely establishes a suspicion of guilt. Dunn v. State (1973), 260 Ind. 142, 293 N.E.2d 32; Manlove v. State (1968), 250 Ind. 70, 232 N.E.2d 874; Easton v. State (1967), 248 Ind. 338, 228 N.E.2d In Dunn the body of a ......
  • Williams v. State, No. 1-880A220
    • United States
    • Indiana Court of Appeals of Indiana
    • January 27, 1981
    ...drawn therefrom are insufficient as a matter of law." 157 Ind.App. at 536, 300 N.E.2d 902. Williams correctly cites Dunn v. State, (1973) 260 Ind. 142, 293 N.E.2d 32, for the proposition that mere suspicion or opportunity is insufficient to sustain a conviction. However, physical evidence, ......
  • Ortiz v. State, No. 576S147
    • United States
    • Indiana Supreme Court of Indiana
    • November 16, 1976
    ...merely tending to establish a suspicion of guilt, or that the accused had the opportunity to commit the crime, Dunn v. State, (1973) 260 Ind. 142, 293 N.E.2d 32; Manlove v. State, (1968) 250 Ind. 70, 232 N.E.2d 874. We are not faced with such evidence here, but with evidence from which the ......
  • Ferguson v. State, No. 4-1184A316
    • United States
    • Indiana Court of Appeals of Indiana
    • August 5, 1985
    ...because of opportunity or suspicion." Manlove v. State (1968), 250 Ind. 70, 83, 232 N.E.2d 874, 881, quoted in Dunn v. State (1973), 260 Ind. 142, 147, 293 N.E.2d 32, 34; see also Ruetz v. State (1978), 268 Ind. 42, 51, 373 N.E.2d 152, 157 ("[A] reasonable inference of guilt, sufficient to ......
  • Request a trial to view additional results
22 cases
  • Ruetz v. State, No. 175S22
    • United States
    • March 9, 1978
    ...line of cases holding insufficient to support a conviction evidence which merely establishes a suspicion of guilt. Dunn v. State (1973), 260 Ind. 142, 293 N.E.2d 32; Manlove v. State (1968), 250 Ind. 70, 232 N.E.2d 874; Easton v. State (1967), 248 Ind. 338, 228 N.E.2d In Dunn the body of a ......
  • Williams v. State, No. 1-880A220
    • United States
    • Indiana Court of Appeals of Indiana
    • January 27, 1981
    ...drawn therefrom are insufficient as a matter of law." 157 Ind.App. at 536, 300 N.E.2d 902. Williams correctly cites Dunn v. State, (1973) 260 Ind. 142, 293 N.E.2d 32, for the proposition that mere suspicion or opportunity is insufficient to sustain a conviction. However, physical evidence, ......
  • Ortiz v. State, No. 576S147
    • United States
    • Indiana Supreme Court of Indiana
    • November 16, 1976
    ...merely tending to establish a suspicion of guilt, or that the accused had the opportunity to commit the crime, Dunn v. State, (1973) 260 Ind. 142, 293 N.E.2d 32; Manlove v. State, (1968) 250 Ind. 70, 232 N.E.2d 874. We are not faced with such evidence here, but with evidence from which the ......
  • Ferguson v. State, No. 4-1184A316
    • United States
    • Indiana Court of Appeals of Indiana
    • August 5, 1985
    ...because of opportunity or suspicion." Manlove v. State (1968), 250 Ind. 70, 83, 232 N.E.2d 874, 881, quoted in Dunn v. State (1973), 260 Ind. 142, 147, 293 N.E.2d 32, 34; see also Ruetz v. State (1978), 268 Ind. 42, 51, 373 N.E.2d 152, 157 ("[A] reasonable inference of guilt, sufficient to ......
  • Request a trial to view additional results

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