Dunn v. State, 1171S319

• Citation: 293 N.E.2d 32,260 Ind. 142
• Decision Date: 06 March 1973
• Docket Number: No. 1171S319,1171S319
• Parties: James W. DUNN, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme 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.

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 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- 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 several days later when someone at the funderal home mentioned the attack upon Edward Cassady.

Edward Cassady was subsequently found by a passerby, Clarksville police officers were summoned, and he was removed to a local hospital. Prior to being taken to the hospital, he identified his assailant as the Appellant, James Dunn. Due to the extent and nature of his injuries, the bullet fragments in his head were never removed.

On Saturday morning, November 7, 1970, Clarksville police officers investigating the scene of the attack upon Edward Cassady discovered an appointment slip bearing the name of the decedent Morris Willhite. Since the appointment slip appeared to be of no relevance, it was discarded. After learning of the death of Morris Willhite, however, the Clarksville police returned to the scene of the attack upon Edward Cassady and located the deceased's billfold, union card and identification card. These items were scattered as if they had been thrown from the roadway or from a passing automobile. The discovery of the effects of Morris Willhite at the scene of the Cassady attack suggests that Willhite had been murdered before the attack on Cassady took place.

At approximately the same time that Clarksville police were searching the area of the Cassady attack on November 7, 1970, Morris Willhite's body was discovered and the New Albany police were summoned. Although the record does not reveal the exact proximity of the body of Willhite and its relationship to the scene of the Cassady attack, both were within the Silver Creek area near the Ohio River between New Albany and Clarksville. When he was found, the deceased exhibited face and head injuries such as would result from a fall or a beating; however, it was subsequently determined that death was caused by a head wound from a small caliber bullet. Neither the time of death nor the exact caliber of bullet were determined. Although there was evidence that death had occurred elsewhere and the body had been dragged to the spot where it was discovered, no testimony was offered which would suggest...