Franklin v. State, No. 676S186

Docket NºNo. 676S186
Citation364 N.E.2d 1019, 266 Ind. 540
Case DateJuly 21, 1977

Page 1019

364 N.E.2d 1019
266 Ind. 540
John W. FRANKLIN, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 676S186.
Supreme Court of Indiana.
July 21, 1977.

[266 Ind. 541]

Page 1020

Michael J. McDaniel, New Albany, for appellant.

Theodore L. Sendak, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged with first degree murder of his wife, Ind.Code (Burns 1975) 35-13-4-1. Over a claim of self defense, he was convicted, in a trial by jury, of second degree murder, Ind.Code (Burns 1975) 35-1-54-1, and sentenced to life imprisonment. His appeal presents two issues.

(1) Whether the State's evidence in chief was sufficient, as a matter of law, to overcome the claim of self defense, beyond a reasonable doubt.

(2) Whether the defendant's self-incriminating in-custody statement was admissible in evidence.

The defendant and his wife had a history of marital discord. Both drank excessively. For several days prior to the slaying, they had quarreled over her late hours and the people with whom she associated.

On the evening of the slaying, the two were drinking in a tavern. While he was purchasing drinks at the bar, she left the table where they had been sitting and joined several men [266 Ind. 542] at another table. When he returned from the bar with their drinks, she refused to join him at their table. She later refused him a second time and cursed him. He became angry and started to use physical force. A ruckus followed. The defendant fired three shots with a .38 caliber revolver and fled. One of the shots killed his wife.

ISSUE I

In support of his self-defense claim, the defendant testified that he had purchased the death weapon two days prior to the killing and in contemplation of suicide. On the following day he purchased bullets, but the plan was not carried out that day, because he did not know how to load the gun. The next morning, a friend loaded it for him and he put it under the front seat of his automobile. At 4:45 p. m., he picked his wife up after she left her place of employment. She had left home drunk in the early morning hours, following an argument two days earlier, and had not returned. They drove to a restaurant in a nearby village and then to the tavern in New Albany, where the shooting occurred. He had been drinking all day and became angry when she refused to leave and cursed him. A man whom he did not know but who was seated at the table, told him to leave her alone and used some profanity. As the defendant took ahold of his wife's arm to pull her up from the chair, the stranger pushed his chair back suddenly. The defendant thought that the man was reaching into his back pocket for a gun and was going to attack him. In defense of himself, he drew his gun, cocked it and fired. The shot went wild. His wife started to get up, and he pushed her back into her chair and cocked and fired the gun again so quickly that he didn't even know it. Simultaneously, his wife stood up again and was in the line of fire. As the defendant left the tavern, the man came toward him so he deliberately fired a third shot, this time at the floor, but it ricocheted and hit the man in the leg.

It is the defendant's contention that, in as much as the State's case in chief was predicated entirely upon establishing[266 Ind. 543] that the defendant intentionally shot and killed his wife and did not deal with whether or not the wife was killed accidently while the defendant was attempting to exercise a right of self-defense, the State had a burden to rebut directly the self-defense claim, which it failed to do. It is the defendant's claim, therefore, that his motion for a directed verdict at the close of all the evidence should have been sustained.

Page 1021

The test to be applied on appeal of a denied motion for a directed verdict of acquittal is the same as that used in a general review for the sufficiency of the evidence. Hubble v. State, (1973) 260 Ind. 655, 299 N.E.2d 612. Such a motion can be granted only if there is a total absence of evidence on some essential issue, Carroll v. State, (1975) Ind., 338 N.E.2d 264; Birkla v. State, (1975) Ind., 323 N.E.2d 645, Cert. den. 423 U.S. 853, 96 S.Ct. 99, 46 L.Ed.2d 77; Hubble v. State, supra, or if the evidence is without conflict and is susceptible to but one inference, which inference is in favor of the accused, Bash v. State, (1972) 254 Ind. 671, 262 N.E.2d 386; Hardin v. State, (1964), 246 Ind. 23, 201 N.E.2d 333, Reh. Den. 246 Ind. 23, 202 N.E.2d 164.

When the determination of an issue involves the weight to be given evidence of the credibility of witnesses, it is improper to direct a verdict. Davis v. State, (1968) 250 Ind. 54, 233 N.E2d 642; State v. Patsel, (1960) 240 Ind. 240, 163 N.E.2d 602; State v....

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18 practice notes
  • Vaughn v. State, No. 876S236
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1978
    ...or great bodily harm or in such apparent danger as to cause him to fear death or great bodily harm. Franklin v. State (1977), Ind., 364 N.E.2d 1019. Here, there is no indication other than his own testimony that appellant [269 Ind. 150] was in actual fear when he shot the decedent. Witnesse......
  • Shepler v. State, No. 180S2
    • United States
    • Indiana Supreme Court of Indiana
    • November 7, 1980
    ...v. State, (1980) Ind., 404 N.E.2d 1348, 1352; Brown v. State, (1979) Ind., 390 [274 Ind. 336] N.E.2d 1000, 1003; Franklin v. State, (1977) 266 Ind. 540, 546, 364 N.E.2d 1019, 1022; Ortiz v. State, (1976) 265 Ind. 549, 553-54, 356 N.E.2d 1188, 1191; Montes v. State, (1975) 263 Ind. 390, 399,......
  • Allen v. State, No. 181
    • United States
    • Indiana Supreme Court of Indiana
    • February 23, 1982
    ...Grey v. State, (1980) Ind., 404 N.E.2d 1348, 1351-52; Gutierrez v. State, (1979) Ind., 388 N.E.2d 520, 525-26; Franklin v. State, (1977) 266 Ind. 540, 546, 364 N.E.2d 1019, ISSUE II Prior to trial, Defendant made a motion to prevent the in-court identification of Defendant by a witness, Cor......
  • Taylor v. State, No. 679S149
    • United States
    • Indiana Supreme Court of Indiana
    • June 27, 1980
    ...by the trial judge in determining the issue of voluntariness. Hill v. State, (1979) Ind., 390 N.E.2d 167; Franklin v. State, (1977) 266 Ind. 540, 364 N.E.2d Appellant also claims that he was promised leniency and that this rendered his statement involuntary. Appellant testified at the motio......
  • Request a trial to view additional results
18 cases
  • Shepler v. State, No. 180S2
    • United States
    • Indiana Supreme Court of Indiana
    • November 7, 1980
    ...v. State, (1980) Ind., 404 N.E.2d 1348, 1352; Brown v. State, (1979) Ind., 390 [274 Ind. 336] N.E.2d 1000, 1003; Franklin v. State, (1977) 266 Ind. 540, 546, 364 N.E.2d 1019, 1022; Ortiz v. State, (1976) 265 Ind. 549, 553-54, 356 N.E.2d 1188, 1191; Montes v. State, (1975) 263 Ind. 390, 399,......
  • Vaughn v. State, No. 876S236
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1978
    ...or great bodily harm or in such apparent danger as to cause him to fear death or great bodily harm. Franklin v. State (1977), Ind., 364 N.E.2d 1019. Here, there is no indication other than his own testimony that appellant [269 Ind. 150] was in actual fear when he shot the decedent. Witnesse......
  • Allen v. State, No. 181
    • United States
    • Indiana Supreme Court of Indiana
    • February 23, 1982
    ...Grey v. State, (1980) Ind., 404 N.E.2d 1348, 1351-52; Gutierrez v. State, (1979) Ind., 388 N.E.2d 520, 525-26; Franklin v. State, (1977) 266 Ind. 540, 546, 364 N.E.2d 1019, ISSUE II Prior to trial, Defendant made a motion to prevent the in-court identification of Defendant by a witness, Cor......
  • Taylor v. State, No. 679S149
    • United States
    • Indiana Supreme Court of Indiana
    • June 27, 1980
    ...by the trial judge in determining the issue of voluntariness. Hill v. State, (1979) Ind., 390 N.E.2d 167; Franklin v. State, (1977) 266 Ind. 540, 364 N.E.2d Appellant also claims that he was promised leniency and that this rendered his statement involuntary. Appellant testified at the motio......
  • Request a trial to view additional results

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