Fletcher v. State

• Citation: 88 N.E.2d 146,227 Ind. 687
• Decision Date: 17 October 1949
• Docket Number: 28552.
• Parties: FLETCHER v. STATE
• Court: Supreme Court of Indiana

88 N.E.2d 146

227 Ind. 687

FLETCHER v. STATE

No. 28552.

Supreme Court of Indiana.

October 17, 1949

Theodore Lockyear, Evansville, James D. Lopp Evansville, for appellant.

J. Emmett McManamon, Atty. Gen., Charles F O'Connor, Dep. Atty. Gen., Merl M. Wall, Dep. Atty. Gen for appellee.

STARR, Judge.

The appellant was charged with murder in the second degree by indictment returned in the Vanderburgh Circuit Court to which he entered his plea of not guilty. A trial was had before a jury which resulted in a verdict and judgment convicting appellant of murder in the second degree. From this conviction this appeal is prosecuted. The questions presented arise upon the action of the trial court in overruling the motion for a new trial.

Three specifications are set out in the motion as grounds for a new trial. One of these specifications was that a new trial should have been granted for the reason that the jury had separated without leave of the court after retiring to deliberate on the verdict. The motion for a new trial was verified on information and belief by the appellant. This specification cannot be considered or reviewed as it is not properly presented. This specification not being disclosed by the record proper had to be sustained by affidavit, Burns 1942 Repl. § 9-1903. Here the allegations as to the separation of the jury appear in the motion for a new trial but there is no bill of exceptions showing that this specification was sustained by any evidence. 'It has been repeatedly decided, and is well settled, that affidavits supporting a motion for a new trial can only be brought into the record by a bill of exceptions, and that the motion for a new trial, though itself a part of the record, 'does not constitute evidence fo the truth of the alleged causes for the motion, and this is so, even though the motion be sworn to or accompanied by affidavits in support of it.'' McCallister v. State, 1940, 217 Ind 65, 26 N.E.2d 391, 394. See also Soucie v. State, 1941, 218 Ind. 215, 31 N.E.2d 1018; Butler v. State, 1945, 223 Ind. 260, 60 N.E.2d 137. Furthermore had the motion for a new trial been offered in evidence and this fact shown by a bill of exceptions, it would not have been of any probative value as it was verified on information and belief. Hawkins v. Aldridge, 1937, 211 Ind. 332, 7 N.E.2d 34, 109 A.L.R. 1205.

Finally it is contended that the verdict is not sustained by sufficient evidence and is contrary to law. Since only the sufficiency of the evidence is in question, these two specifications will be considered together.

The evidence most favorable to the State discloses that on September 24, 1949, at about 11:30 o'clock P. M. the appellant and his wife, Dorothy, who is the deceased, were walking together on Lincoln Avenue toward Line Street in Evansville; that they passed one Leo Baker, a witness for the State. This witness testified that as the appellant and his wife passed him he was standing on Lincoln Avenue talking to a friend. When they got about 20 feet away from him on Lincoln Avenue he heard a gun going off. His back was turned toward the appellant when the shooting started, but on hearing the gunfire he immediately turned toward the appellant in time to see him fire the last shot and saw deceased stagger and fall into the street. The appellant was about five feet from the deceased when he fired the last shot; that after the last shot he saw appellant leave the Avenue in a pretty 'good hurry' and proceed across a junk yard into an alley which was the last the witness saw of him.

The evidence discloses that the deceased was hit three times by this shooting and from her wounds she died. It further discloses that at about 1:30 or 2:00 o'clock...