Emery v. State

• Citation: 250 Ind. 500,236 N.E.2d 28
• Decision Date: 25 April 1968
• Docket Number: No. 31076,31076
• Parties: Edward H. EMERY, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 28

236 N.E.2d 28

250 Ind. 500

Edward H. EMERY, Appellant, v. STATE of Indiana, Appellee.

No. 31076.

Supreme Court of Indiana.

April 25, 1968.

Rehearing Denied June 10, 1968.

Robert W. Maher, Ben F. Hatfield, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Indianapolis, Lawrence D. Frutkin, Donald D. Doxsee, Deputy Attys. Gen., for appellee.

ARTERBURN, Judge.

The State indicted appellant with a charge of murder in the first degree in the killing of one William Earl Holland. Trial was had by jury, and the jury returned a verdict of guilty of murder in the second degree. He appeals and claims error by reason of the overruling of his motion for a new trial, with the specifications that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. The only substantial question appellant raises is the contention that the killing was not done purposely and maliciously. For that reason we must review the evidence briefly. When an appellant in a criminal action raises the question of the sufficiency of the evidence, this Court will only consider that evidence most favorable to the State, together with all reasonable and logical inferences to be drawn therefrom. Greenwalt v. State (1965), 246 Ind. 608, 209 N.E.2d 254; Ponos v. State (1962), 243 Ind. 411, 184 N.E.2d 10.

It appears that the appellant-Emery, the decedent-Holland, Waymond Dyer and another man by the name of Decker left a tavern about 12:00 o'clock midnight and went to the home occupied by the appellant and Holland. They played some poker and apparently drank some beer, and while thus engaged Holland noticed that the appellant-Emery had a semi-automatic rifle in his hands. Holland, the decedent, took the rifle from Emery and said: 'You know it's loaded' and put the rifle in a closet. Approximately ten minutes later Emery went to the closet, picked up the gun and was squatting in the closet with the rifle pointed towards Dyer. Dyer jumped out of the chair, and Emery shot him in the right hip. Then the decedent-Holland got up unarmed, with nothing in his hands and rushed Dyer and was shot three times. Holland grabbed for Emery and had his hands around him as they fell back in the closet. Decker finally grabbed the rifle from Emery after he had shot Holland three times. The time of the shooting was approximately thirty minutes after the four men had arrived at the apartment.

It is first argued that the appellant was not capable of forming an intent due to intoxication. Although the evidence is in some conflict, there is sufficient evidence for the jury to find that the appellant was not intoxicated to the degree urged. There was evidence that the appellant was sober at the time he arrived at the apartment before the shooting; that he walked straight and talked normally. After the police arrived following the shooting, the testimony at that time was that his manner and talk did not reveal any intoxication.

It is next urged that there is no evidence of malice and purpose to kill, primarily because there is no antecedent evidence of any altercation or quarrel between the parties. The appellant relies upon Miller v. State (1962), 242 Ind. 678, 181 N.E.2d 633. An examination of that case shows there is a distinction between that and the instant appeal. This Court there found that the evidence showed that the appellant did not intend to kill because of the uncontradicted evidence that his shot was directed at the hand of the decedent, who held a knife. It is stated there (at p. 688 of 242 Ind. and at p. 637 of 181 N.E.2d):

'The present case is distinguished from Taylor v. State (1929), 201 Ind. 241, 167 N.E. 133, in that there the victim, Cook, was shot in the 'breast above his heart', * * *'

and quoted there from Taylor v. State:

'Appellant's act of shooting Cook in a vital part of * * * Cook's body with so powerful a pistol that the shot passed through Cook's body shows a deliberate intent to bring about the probable consequences of the act. And the presumption of malice stands until rebutted by competent evidence.'

The Miller case also stated (at p. 687 of 242 Ind. and at p. 637 of 181 N.E.2d):

'It is true that a deadly weapon was intentionally used here, but in our judgment it was not used in such a manner as was calculated to, or was likely to cause death.'

In the case before us the evidence is uncontradicted that the appellant first shot Dyer, who was unarmed, and then turned the gun on the decedent, who was also unarmed, and continued to shoot, placing three shots into the body of Holland, one of them penetrating a vital portion of the body, namely, the breast, and the main artery leading to the heart.

In Schlegel v. State (1958), 238 Ind. 374, 377, 150 N.E.2d 563, 564, we stated:

"* * * intent and purpose to kill may be inferred from the deliberate use of a deadly weapon in a manner calculated to produce death' and malice may be inferred from the use of the shotgun which caused the death as charged in the indictment herein. Pitts v. State, 1939, 216 Ind. 168, 170, 171, 23 N.E.2d 673; Myles v. State, 1955, 234 Ind. 129, 133, 124 N.E.2d 205.'

In Bridgewater v. State (1899), 153 Ind. 560, 563, 55 N.E. 737, 738, we stated:

'* * * suddenness and ferocity, the weapon used, the number and character of the wounds, and their location--unmistakably indicated a relentless purpose to kill, coupled with intense malice * * *.'

Malice is one fact for the jury to decide in the prosecution for second degree murder, and the law presumes that a person intends the natural consequences of his act. The appellant's use of a deadly weapon which he knew was loaded and which had previously been taken away from him with a warning, is a fact which the jury had a right to consider. It has been said a number of times that the use of a deadly weapon against an unarmed person substantiates the essential elements of mallice. Sparks v. State (1964), 245 Ind. 245, 195 N.E.2d 469, 196 N.E.2d 748.

The judgment of the trial court is affirmed.

LEWIS, C.J., and HUNTER, J., concur.

MOTE, J., dissents.

JACKSON, J., dissents with opinion.

JACKSON, Judge (dissenting).

Appellant was charged by indictment with the crime of murder in the first degree. The indictment, omitting formal parts thereof, reads as follows, to-wit:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that EDWARD H. EMERY on or about the 1st day of JANUARY, A.D. 1966, at and in the County of Marion, and in the State of Indiana, did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder WILLIAM EARL HOLLAND, a human being, by then and there unlawfully, feloniously, purposely and with premeditated malice shooting at and against the body of the said WILLIAM EARL HOLLAND with a gun, loaded with gunpowder and metal bullets, then and there held in the hands of the said EDWARD H. EMERY, and did then and there and thereby inflict mortal wounds in and upon the body of the said WILLIAM EARL HOLLAND, of which mortal wounds the said WILLIAM EARL HOLLAND did then and there and thereby die; and so the Grand Jurors aforesaid, upon their oaths aforesaid, do say and charge that the said EDWARD H. EMERY in the manner and form and by the means aforesaid unlawfully, feloniously, purposely and with premeditated malice did kill the said WILLIAM EARL HOLLAND, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

Upon arraignment the appellant entered a plea of not guilty to the charge embraced in the indictment.

Trial was had by jury, beginning August 1, 1966 and concluding August 3, 1966. At the conclusion of the State's evidence, and out of the presence of the jury, the appellant made an oral motion for a discharge as to First and Second Degree Murder. The motion was overruled by the court, whereupon appellant submitted evidence and rested. The State of Indiana rested.

The jury retired, deliberated, reached and returned the following verdict:

'We, the Jury, find the defendant, Edward H. Emery guilty of Murder in the Second Degree as charged in the indictment.'

Thereafter, a pre-commitment investigation report was ordered filed, and afterwards on August 30, 1966 the same was filed. Thereafter, on September 1, 1966, appellant by counsel filed his motion for a new trial.

On September 15, 1966, the court rendered judgment on the verdict of the jury. Such judgment in pertinent part reading as follows, to-wit:

'This being the day and hour heretofore set for pronouncement of judgment after presentence investigation heretofore ordered, filed and examined by the Court.

On a finding of guilty of Second Degree Murder as covered by the Indictment by a Jury, Court now sentences the Defendant being of true age forty-six (46) years to the Indiana State Prison for the term of his natural life.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Defendant Emery be of true age forty-six (46) years and being found guilty of Second Degree Murder as covered by the indictment by a jury is now sentenced to the Indiana State Prison for the term of his natural life.'

Thereafter on September 19, 1966, the court made the following entry:

'Court being duly advised now overrules Defendant's motion for a new trial, heretofore filed.'

Appellant's motion for a new trial contains the following two grounds, to-wit:

'1. The verdict of the jury is not sustained by sufficient evidence.

2. The verdict of the jury is contrary to law.'

Appellant's Assignment of Error contains a single specification as follows:

'1. The Court Erred in overruling the appellant's motion for a new trial.'

There is little or no conflict in the evidence in the case at bar and the summary of the evidence embodied in the appellee's brief, together with a few additions from the evidence of the witness Dyer and the witness Decker both of whom were...