Flowers v. State

• Decision Date: 27 December 1956
• Docket Number: No. 29336,29336
• Citation: 139 N.E.2d 185,236 Ind. 151
• Parties: Elmer John FLOWERS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 185

139 N.E.2d 185

236 Ind. 151

Elmer John FLOWERS, Appellant, v. STATE of Indiana, Appellee.

No. 29336.

Supreme Court of Indiana.

Dec. 27, 1956.

N. George Nasser, Terre Haute, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Deputy Atty. Gen., for appellee.

EMMERT, Judge.

This is an appeal, in forma pauperis, from a judgment on a verdict finding appellant guilty of murder in the first degree and fixing the penalty at death. The assignment of errors questions the actions of the trial court in overruling appellant's plea in abatement, and his motion for new trial.

On December 10, 1956, the Governor commuted appellant's sentence to imprisonment for life. The rule is well settled in this state that an applicable statute by operation of law becomes a prt of the judgment as though written therein. Dowd v. Sims, 1950, 229 Ind. 54, 95 N.E.2d 628; Woodward v. Murdock, 1890, 124 Ind. 439, 24 N.E. 1047; State ex rel. Reed v. Howard, 1946, 224 Ind. 515, 69 N.E.2d 172; Mellot v. State, 1942, 219 Ind. 646, 40 N.E.2d 655. Likewise, Section 17 of Article 5 of the Constitution of Indiana, which granted the Governor the power to commute this sentence, becomes a part of this judgment, as well as the official act of commutation. Appellant is still held in custody by authority of the judgment herein, which is still final, so that appellant's right to appeal therefrom is not diminished or extinguished by the commutation.

The appellant filed a plea in abatement to the indictment in which he charged that the order of the court for the drawing of the grand jury which returned this indictment, under § 4-3320, Burns' 1946 Replacement, required the drawing to be at 10:00 o'clock A. M. Daylight Savings Time instead of specifying the time as Central Standard Time as required by § 2-4705b, Burns' 1946 Replacement, Supp., and that by reason thereof the action should abate. The state did not demur to this answer, nor did it file any reply, nor was any trial had on this issue. The court set arguments on the plea in abatement for November 30, 1954, and on this latter date, in the presence of appellant, his counsel and the Prosecuting Attorney, the court overruled the plea in abatement. This procedure was unauthorized and an improper way to dispose of this answer. However, it is quite apparent the parties and the court considered the plea as if it had been tested by a demurrer, and cause No. 37 of appellant's miton for new trial charged, 'the court committed error of law in sustaining the State of Indiana's Demurrer to the Plea in Abatement filed by this defendant.' When a party agrees to a manner for determining his rights in the trial court, he cannot claim error on appeal because this procedure was adopted. State ex rel. Cline v. Schricker, 1949, 228 Ind. 41, 45, 88 N.E.2d 746, 89 N.E.2d 547. See also Fritz v. State, 1912, 178 Ind. 463, 469, 99 N.E. 727. The plea in abatement failed to assert noncompliance with the statutory requirements as to time was in bad faith, nor did it show harm to the substantial rights of appellant. The presumption is every requirement of the statute on drawing a grand jury was complied with except the drawing was one hour earlier than it should have been. This is not sufficient to hold it an illegal grand jury. The facts in Rudd v. State, 1952, 231 Ind. 105, 107 N.E.2d 168, where we held a plea in abatement good, furnish no basis for a reversal of this case.

The motion for a new trial challenges the sufficiency of the evidence to sustain the verdict of guilty. Although we examine the evidence on appeal to see if there was substantial evidence of probative value to prove each material allegation of the offense charged, we do not weigh the evidence nor judge the credibility of the witnesses and we only consider the evidence most favorable to the State, and the reasonable and logical inference to be drawn therefrom to determine whether there was a failure of proof. Kallas v. State, 1949, 227 Ind. 103, 83 N.E.2d 769; Todd v. State, 1951, 230 Ind. 85, 101 N.E.2d 922.

We have carefully examined the entire transcript consisting of more than 1,000 pages, and from the bill of exceptions containing the evidence, the following facts were disclosed:

Appellant and Iona Kennedy (generally called Ione) were married about three years before the homicide, and until May or June, 1954, were residing in a room of a rooming house kept by Catherine Helmick at 113 Harding Avenue in Terre Haute. Mrs. Kennedy had two small children by a former marriage, and all four lived in the same room. The mother worked as a waitress, and appellant had a light truck with which he did odd jobs and hauling. During May or June of that year, Mrs. Kennedy sued appellant for divorce, which was granted some weeks before the homicide. When the suit was first filed, appellant had moved elsewhere, but later moved back to a room at 111 Harding Avenue, where he lived and ate his meals. The parties saw each other at various times even when the divorce was pending, but about three weeks before the homicide, Mrs. Kennedy was keeping company with one Leland Fish, and was planning to move from her room at 113 Harding Avenue. This relationship came to the notice of appellant, who, without success, attempted to effect a reconciliation, and several witnesses testified appellant said he was going to kill Mrs. Kennedy. He tried to borrow $20 to buy a pistol, tried to borrow one, and did have a .32 revolver a day or so before Monday, October 4, 1954. On this evening he came to Mrs. Helmick's kitchen, asked if Mrs. Kennedy was going to move and said, 'Kate, I am not going to kill Ione in your back yard but I will wait until she moves and then I am going to kill her.'

At about 7:45 o'clock the same night appellant asked Mrs. Helmick to go upstairs and get Ione, and Mrs. Helmick sent her daughter, Shirley, Sankey, to convey the message to Mrs. Kennedy, who came downstairs and went into the back yard to see appellant. Mrs. Sankey heard them quarreling, and then heard somebody running on the cinders in the back yard, and heard Mrs. Kennedy 'hollering, 'Please don't Elmer,' 'Elmer please don't." She heard one shot, and then Mrs. Kennedy scream. Mrs. Sankey ran outside and saw Mrs. Kennedy lying on her back and 'Elmer standing over her with a gun in his hand.' 'He shot once more straight into her body and her legs quivered and she moved.' 'He fired another shot.' After the last shot, 'He stood there clicking the gun over he body.' Then he pointed the gun at Mrs. Sankey and 'clicked it once.' When the gun was examined at police headquarters it contained three fired cases, and one loaded bullet, the primer of which had been hit by the hammer. Photographs of the decedent show two bullets entered the left side of her chest only a few inches apart.

Police officers Tryon and Collins were in a patrol car at the time near the scene, heard the shots, and drove at once in a back alley, where they saw appellant and the deceased. Appellant made no attempt to flee, and there he was arrested, the gun taken from him, and later he was taken to police headquarters. He was asked why he shot Mrs. Kennedy, and he said, 'she had been running around * * * if he couldn't have her no one else could have her.' While appellant was in the police car at the scene of the homicide he said to officer Bealmer, 'if I can't have her nobody will and I'm glad its over.'

Later that night at police headquarters he was questioned at length about the shooting, but he refused to sign a written confession until he had his lawyer look it over. He made no demand for a lawyer before being questioned, and he was not coerced nor was any statement made under inducement. The record fails to show he was deprived of his right to counsel. Eiffe v. State, 1948, 226 Ind. 57, 63, 77 N.E.2d 750; Marshall, v. State, 1949, 227 Ind. 1, 10, 83 N.E.2d 763. ¹ Robert Flowers, a brother of appellant, testified that they heard of the shooting that night, and with four other members of the family drove to Terre Haute from Marshall, Illinois; that after they went to the rooming house they went to the city hall two times, and asked to see appellant while he was being questioned, but they were not permitted to see him that night, nor at the county jail for a period of at least ten days. However, the next day the brother employed counsel, John A. Kessler, to represent appellant. There was no showing that appellant was ever denied the right to see his counsel at any time, and from October 11th the counsel appeared of record for appellant. We fail to see how the refusal to permit the relatives to see appellant when he was being questioned at the city hall deprived him of any constitutional right. Appellant was forty-two (42) years of age, freely talked about the shooting from the time he was first arrested, and made no demand to see his relatives or a lawyer before he talked. No force, fraud, coercion or inducements were used to obtain his oral confession, and there was no error in any of the court's rulings admitting the same in evidence.

Nor did the court commit error in refusing to direct a verdict for appellant, and we cannot hold the verdict was not sustained by sufficient evidence.

Appellant filed a special plea that he was of unsound mind at the time the offense charged was committed, to which the State filed a reply of general denial. Section 9-1701, Burns' 1956 Replacement. There was a conflict in the evidence on this issue, and it is sufficient to note there was sufficient evidence to require the State to prove beyond a reasonable doubt that appellant was of sound mind at the time the shooting occurred. This burden never shifted from the State. Noelke v. State, 1938, 214 Ind. 427, 433, 15 N.E.2d 950; McHargue v. State, 1923, 193 Ind. 204, 139 N.E. 316; Walters v. State, 1915, 183 Ind. 178, 108 N.E. 583. ²

The court gave to the jury State's requested instruction No. 9, as follows:

'Under our law,...