Fulmer v. State

• Decision Date: 19 October 1967
• Docket Number: No. 30684,30684
• Citation: 249 Ind. 261,230 N.E.2d 307
• Parties: Kenneth Clayton FULMER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 307

230 N.E.2d 307

249 Ind. 261

Kenneth Clayton FULMER, Appellant, v. STATE of Indiana, Appellee.

No. 30684.

Supreme Court of Indiana.

Oct. 19, 1967.

Rehearing Denied Dec. 21, 1967.

Palmer K. Ward, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Raymond I. Klagiss, Deputy Atty. Gen., Indianapolis, for appellee.

LEWIS, Judge.

A jury in Marion County Criminal Court, Division Two, convicted Kenneth Clayton Fulmer of Murder in the Second Degree on an indictment charging him with Murder in the First Degree. The issues formed at the trial were on the indictment with a plea of not guilty and a second affirmative plea of not guilty by reason of insanity. Fulmer complains here of the following errors allegedly committed during his trial:

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

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

'3. That the court erred in allowing admissions of the defendant to be introduced prior to the establishment of the corpus delicti of the crime.'

The fourth assignment of error will be treated later in this opinion.

On September 21, 1964, Fulmer and an accomplice planned to rob a taxicab driver. In persuing such plans, they went to Woodruff Place in the City of Indianapolis, memorized a street address, and returned to the center of Indianapolis; in particular, to the Bus Terminal Building. The appellant then hailed a taxicab and directed the driver to take him to the address in Woodruff Place. At the time he arrived at the address the appellant drew a .25 caliber automatic weapon and instructed the victim driver that it was a holdup and demanded the cash. The driver turned and faced the appellant and as he turned caused the lights in the interior of the cab to be turned on. A struggle ensued with the gun being discharged. The driver was mortally wounded. The appellant Fulmer fled the scene, but his flight was observed by several witnesses. The accomplice assisted the appellant by picking him up after the ill-fated robbery and appellant went to the home of a friend. The friend later testified that Fulmer made inconsistent statements as to whether or not he had participated in the robbery of the cab driver.

There was other evidence that appellant had made admission against interest to the effect that he had 'shot a guy'. Appellant himself testified to facts substantially as above set out. Extrajudicial statements should not be admitted into evidence until there is proof of the corpus delicti of the offense charged. Generally speaking, a trial judge in his discretion controls the order of proof. Hart v. State (1942), 220 Ind. 469, 44 N.E.2d 346. However, this general rule is limited by a line of respectable authority to the effect that the corpus delicti must be proven before the extrajudicial confessions and statements are received. Dennis v. State (1951), 230 Ind. 210, 102 N.E.2d 650, quoting with authority from Gaines v. State (1921), 191 Ind. 262, 132 N.E. 580, Hunt v. State (1939), 216 Ind. 171, 23 N.E.2d 681. Prior to the time any extrajudicial statements were admitted here, we found evidence to be substantially as follows: A taxicab was left standing in Woodruff Place with the motor running and two doors open; the victim was lying beside it; the victim's blood was splashed upon the cab; a spent .25 caliber casing was found in the vehicle; several witnesses testified they saw a person flee from the cab after having heard a noise similar to a gun discharging; a deputy coroner testified that the victim died as the result of a bullet lodged in the right lung. It is our opinion that the foregoing posture of the evidence was sufficient showing of the corpus delicti of the offense charged for the Court to admit out-of-court statements.

'Proof of the corpus delicti means proof that the specific crime charged has actually been committed by someone.' Dennis v. State, supra, quoting with authority from Parker v. State (1950), 228 Ind. 1, 88 N.E.2d 556, 89 N.E.2d 442.

Appellant's next contention concerns the admission of certain evidence over objection which evidence concerned other offenses separate and independent from the offense charged. We include here a part of the record so as to have a thorough understanding of appellant's contention on this point:

'4. Error of law occurring at the trial in this:

'That the Court erred in allowing admissions of the defendant as a part of the admissions to the alleged crime.'

'At the trial the State of Indiana, in its case in chief called one James Dyer to the stand and he was permitted to answer the following questions over objection of defendant's counsel:

'Q. Now, going to the defendant's sanity, I will ask you, Mr. Dyer, whether you were with him about two months before October 29, 1963 at the Stokely Van Camp place on South East Street?

'MR. BUTLER: To which we will object. It is irrelevant, has no material bearing on the case being tried by the jury today.

'THE COURT: Overruled. Answer yes or no.

'A. Yes, sir.

'Q. What did you and the defendant do, if anything, at this time?

'MR. BUTLER: We object as having no material bearing on the case being tried by the court and jury today.

'THE COURT: Overruled.

'A. We broke in.

'Q. I will ask you, Mr. Dyer, whether at or about that same time were you with the defendant and a Bob Pearson at a house at 733 Sanders Street?

'MR. BUTLER: To which we object as having no bearing on the case being tried by the court and jury today.

'THE COURT: Want to make an offer to prove, Mr. Breskow, quietly?

'MR. BRESKOW: Have you ruled on the objection?

'THE COURT: Not till I get an offer to prove.

'OUT OF HEARING OF JURY:

' ' Mr. breskow: i/f this witness were permitted to answer, his answer would be that he and the defendant and Bob Pearson broke into a house at 733 Sanders Street and got a T.V. set and an archery set.

'THE COURT: For what purpose?

'MR. BRESKOW: For the purpose of going to the sanity at the time.

'THE COURT: Alright (sic), objection overruled.

'IN THE HEARING OF THE JURY:

'THE COURT: Read the question.

'THE REPORTER READ THE LAST QUESTION.

'A. Yes, sir.

'Q. What, if anything, did you do at that time?

'A. We broke into the house.

'MR. BUTLER: We object, Your Honor, and move the answer to be stricken.

'THE COURT: The answer will go out for the purpose of an objection.

'MR. BUTLER: I object. It is immaterial to the case being tried by court and jury today. It is prejudicial to the rights of this defendant and we ask the Judge to withdraw the submission of the case to the jury and declare a mistrial.

'THE COURT: Overruled.

'Q. What, if anything, did you or the three of you do inside the house?

MR. BUTLER: To which we object for the same reasons, and ask the Court to note the same objection to each of the questions concerning this particular episode.

'THE COURT: Overruled.

'A. We tore the house up pretty bad, looking for money. We could not find any. We stole a rifle.

'Q. And did you and this defendant, about the same time, go to the Northwood Junior High School in Marion County, Indiana?

'A. Yes, sir.

'Q. What, if anything did you and the defendant do at that time and at that place?

'MR. BUTLER: To which we interpose the same objection heretofore given and ask our objection be made a part of the record. We also request there be a mistrial declared and withdraw submission of the case to the jury.

'THE COURT: Overruled.

'A. We broke into it.

'Q. What, if anything did you do inside, you or the defendant or both of you?

'MR. BUTLER: Same objection will be entered as a matter of record, Your Honor.

'THE COURT: Overruled.

'A. We broke in the coke machine and into the phones.

'Q. Can you speak of now, Jim?

'A. Yes, sir.

'Q. At or about the same time, did you and the defendant and a boy named Malcom go to a church located on Sanders Street, one block east of Wright Street, Indianapolis, Indiana?

'A. Yes.

'MR. BUTLER: We object: It has no bearing. We make the same request to withdraw submission of the case to the jury and declare a mistrial.

'THE COURT: Overruled, authority Kiefer v. State (241 Ind. 176) 169 Northeastern, Second, 723, point 5.

'MR. BUTLER: The objection is given basically on the same care, Your Honor. Sorry, I don't see it the same way.

'THE COURT: Overruled.

'Q. Do you understand the question?

'A. Yes, I said we broke into the church.

'Q. What, if anything, did you do inside, you and the defendant?

'MR. BUTLER: We object for the reason heretofore given and made a part of the record. We ask it be withdrawn from the jury and a mistrial be declared.

'THE COURT: Overruled.

'A. We broke in the coke machine and tried to take the safe. It was too heavy to carry."

Generally speaking we reaffirm the law in a criminal prosecution; that if there is evidence of the defendant committing another crime, separate and independent from the offense charged, even though it is similar, it is irrevelant and inadmissible. State v. Robbins (1943), 221 Ind. 125, 46 N.E.2d 691.

Layton v. State (1966), Ind., 221 N.E.2d 881, concerned one exception to the above rule; that being, where the other crime tends to establish the identity of the person who committed the crime at issue. During the trial evidence of the defendant's other crimes were introduced; however, the other crimes didn't, in reality, tend to prove the identity of the perpetrator. In reversing the Trial Court, this Court said:

'This court has previously held:

'The general rule is that one crime cannot be proved in order to establish another distinct crime even though they be of the same kind. Such evidence is highly prejudicial. * * * There are certain exceptions to this general rule. Among these are cases where a crime has certain peculiar characteristics connected with its commission so that it very reasonably identifies the person involved in the commission. * * * " Quoting with authority from Loveless v. State (1960), 240 Ind. 534, 166 N.E.2d 864.

The opinion concludes by stating that since these...