Fausett v. State

• Decision Date: 26 February 1942
• Docket Number: 27582.
• Citation: 39 N.E.2d 728,219 Ind. 500
• Parties: FAUSETT v. STATE.
• Court: Indiana Supreme Court

39 N.E.2d 728

219 Ind. 500

FAUSETT v. STATE.

No. 27582.

Supreme Court of Indiana

February 26, 1942

Wm C. Ewing, of Indianapolis, Waldo C. Ging, of Greenfield, and Schuyler C. Mowrer and Marsh & Marsh, all of Indianapolis, for appellant.

Geo N. Beamer, Atty. Gen., and C. Ballard Harrison, Deputy Atty Gen., for appellee.

SWAIM Judge.

This is an appeal from a conviction of involuntary manslaughter on an indictment which charged the appellant with murder in the first degree.

The appellant relies on two alleged errors: (1) That the trial court erred in overruling the appellant's motion to instruct the jury to return a verdict finding the defendant not guilty; and (2) that the court erred in overruling the appellant's motion for a new trial.

At the conclusion of the State's evidence the appellant filed his motion for a peremptory instruction. After the motion was denied he proceeded to introduce evidence on his behalf. By the introduction of evidence on his behalf, after his motion for a peremptory instruction was denied, the appellant waived any possible error in overruling said motion. Delphos Hoop Co. v. Smith, 1911, 176 Ind. 29, 95 N.E. 309.

Had the error not been so waived, it still would present no question for the determination of this court because it was assigned as an independent error and not as a ground for a new trial. To be available on appeal such an error must be assigned as a ground for a new trial. It can not be made the basis of an independent assignment of error. White v State, 1915, 183 Ind. 649, 109 N.E. 905, Ann.Cas.1917B, 527.

The principal contention of the appellant is that the court erred in overruling his motion for a new trial because the verdict of the jury was not sustained by sufficient evidence. The appellant insists that there is no evidence to support the necessary finding of the court that

the defendant was engaged in the commission of any unlawful act which resulted in the death of Damon Cook, the decedent. Cook was killed by a charge from a shotgun which was in the hands of the appellant at the time it was discharged. The state contends that the appellant at that time was engaged in the commission of an unlawful act in that he was purposely pointing or aiming the shotgun at or toward Cook in violation of Burns' 1933, § 10-4708; Baldwin's 1934, § 2543. Since the charge entered the body of Cook, it must be conceded that at the time the gun was discharged it was pointed at Cook. The question for our determination is, whether there is sufficient evidence to sustain the inference that the appellant was intentionally or purposely pointing the gun at the decedent. If the evidence furnishes a basis for the inference that the gun was being so pointed or aimed intentionally, the judgment must be affirmed.

It is contended that since the jury failed to find the appellant guilty of murder or of voluntary manslaughter, and only found him guilty of the crime of involuntary manslaughter, we must necessarily accept the verdict as a finding that the appellant did not intentionally kill the decedent and that, therefore, evidence which might furnish a basis for a finding that the appellant intentionally killed the decedent can not be used as a basis for the inference that he intentionally pointed the gun at the decedent. With this contention we can not agree. Evidence which would furnish a basis for an inference by the jury that the appellant voluntarily killed the decedent would necessarily furnish a basis for a finding that appellant intentionally pointed the gun. On the basis of such evidence the jury might properly find that the gun was intentionally pointed at the decedent, in violation of the statute, even though it also found that the gun was not intentionally fired at the decedent. In this case there was some evidence on which the jury might properly have based an inference that the appellant stumbled and accidently or unintentionally fired the gun, although believing that at that time he was intentionally pointing the gun at the decedent.

It has been many times held by this court that a charge of murder in the first degree comprehends every grade of felonious homicide. The crime of first degree murder where, as here, the commission of the offense was by means of a shotgun, would naturally include the unlawful pointing of the gun at the victim. The charge of murder in the first degree would, therefore, comprehend the crime of involuntary manslaughter based on the unlawful pointing of a gun and a death resulting therefrom. This court has held that a finding of involuntary manslaughter can not be disturbed on appeal because the evidence also furnished the basis for a finding that the defendant was guilty of murder. Gipe v. State, 1905, 165 Ind. 433, 75 N.E. 881, 1 L.R.A., N.S., 419, 112 Am.St.Rep. 238; Hasenfuss v. State, 1901, 156 Ind. 246, 251, 59 N.E. 463, 465.

In the latter case this court said: 'Certainly, our decisions may be said to settle the question beyond controversy, and correctly so, that, under the law of this state, in all cases of criminal homicide, regardless of the means by which it is committed, the crime is graduated, and must be one or the other of the three grades of homicide, namely, murder in the first or second degree or manslaughter, and that it is in the province of the jury to determine, under the evidence, of which they will convict the accused.'

The real objection here, as was true in Crickmore v. State, 1938, 213 Ind. 586, 12 N.E.2d 266, 268, is that the evidence 'is too much, and not that it is too little', but as this court said in that case, 'Courts have power to set aside a verdict where the evidence is insufficient to sustain it, but no power to set aside a verdict which is sustained by the evidence, because there is no finding of guilt of a higher crime, which the evidence would also have sustained.'

In a criminal case the intention of the defendant may be proved by either direct or circumstantial evidence. 'All evidentiary circumstances which are relative to, or tend to shed light on, the motive or intent of the defendant or which tend fairly to explain his actions are admissible in evidence against him, although they may have occurred previous to the commission of the offense.' 20 Am.Jur. 317, § 340. Such evidence is admissible because it tends to prove the intention of the accused and after being admitted it furnishes a basis for a finding by the jury as to such intent.

We believe that in the instant case when we consider the relationship of the parties involved, the circumstances surrounding the occurrence and the statements made and the silence maintained by the appellant after the shooting occurred, we find abundant evidence to support the inference of the jury that the appellant herein intentionally pointed the shotgun at Cook.

The evidence disclosed that a few months before the homicide the appellant was led to believe that his wife was seeing too much of Cook and that there was talk in the community about appellant's wife because of her association with Cook. On more than one occasion appellant warned Cook to stay away from the appellant's wife. After one such warning Cook became angry and said to appellant: 'I will get you for that and don't you forget it.'

The appellant was the owner and operator of a tavern in Fortville, Indiana. On the night Cook was shot the appellant's wife, Marcella, and her mother went to the appellant's tavern. While they were there Cook came into the tavern and seated himself by the appellant's wife. He was then under the influence of liquor and drank more while there. The bartender remonstrated with Cook because of his actions, and angry words were exchanged between them. While Cook was sitting by the appellant's wife and talking with her he grabbed her arm, knocked her compact out of her hand and caused her to cry. About 10:30 o'clock P. M., when the appellant's wife and her mother prepared to leave the tavern, the mother asked the bartender to have someone escort them to their automobile because she was afraid of Cook. At the request of the bartender a man did go to their automobile with them. Immediately after appellant's wife and her mother left, Cook also left. Shortly thereafter the appellant came into the tavern and was told by the bartender what had happened. The bartender told the appellant that Cook had followed the appellant's wife and mother-in-law out of the tavern and suggested that he, the appellant, had better go home, which he did.

Appellant and his wife lived in an apartment on the second floor of an apartment building, a short distance from the tavern. The appellant entered the front entrance of the apartment building, walked up the front stairway and along the second floor corridor to the rear of the building, where his apartment was located. As he came to the door of his apartment, the mother-in-law came running up the rear stairway of the apartment building crying out, 'Don't let him hurt Marcella.' The appellant grabbed his shotgun from behind the door in his apartment, went down the back stairway, and stepped out into the alley. In the alley he saw his wife parking their automobile and also saw Cook's automobile being driven down the alley toward the apartment building. He called out to Cook to get out of there and then when the Cook automobile was about twenty or twenty-five feet away from appellant, he fired his shotgun twice into the front end of the automobile. He said that he aimed the gun between the headlights of the automobile; and that the second time he shot, the automobile was backing away from him. A picture of the automobile, introduced in evidence, showed that the shot struck the automobile near the top of the radiator and upon the hood. The appellant then...