German v. State

• Decision Date: 30 October 1975
• Docket Number: No. 3--674A108,3--674A108
• Citation: 337 N.E.2d 883,166 Ind.App. 370
• Parties: Charles GERMAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 883

337 N.E.2d 883

166 Ind.App. 370

Charles GERMAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--674A108.

Court of Appeals of Indiana, Third District.

Oct. 30, 1975.

Rehearing Denied Dec. 4, 1975.

J. Patrick Smith, Paul J. Baldoni, LaPorte, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Darrell K. Diamond, Asst. Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant Charles German was convicted of the crime of involuntary manslaughter following a trial before a jury. His motion to correct errors was overruled by the trial court, and he perfected this appeal.

On appeal, German contends that there was insufficient evidence adduced at trial to support his conviction in that proof of his intent to point a firearm at the decedent was a necessary element of the crime with which he was charged, and there was no evidence introduced at trial tending to establish such an intent.

IC 1971, 35--13--4--2, Ind.Ann.Stat. § 10--3405 (Burns Supp.1974), provides, in pertinent part:

'Involuntary Manslaughter. Whoever kills any human being without malice, expressed or implied, involuntarily but in the commission of some unlawful act, is guilty of involuntary manslaughter, and, on conviction, shall be imprisoned in the state prison for not less than one (1) nor more than ten (10) years: * * *.'

The plain wording of IC 1971, 35--13--4--2, supra, requires the commission of an unlawful act resulting in a homicide to give rise to criminal culpability.

In the case at bar, the particular unlawful act which the indictment alleged that German committed was that he 'did * * * purposely point or aim a revolver at and toward another person. * * *.' Such an act is proscribed by IC 1971, 35--1--79--5, Ind.Ann.Stat. § 10--4708 (Burns Supp.1974), which provides, in pertinent part:

'Aiming weapons.--It shall be unlawful for any person over the age of ten (10) years, with or without malice, purposely to point or aim any pistol, gun, revolver or other firearm, either loaded or empty, at or toward any other person; * * *.'

The language of IC 1971, 35--1--79--5, supra, requiring that the pointing of a firearm be purposeful was considered by our Supreme Court in Eaton v. State (1904), 162 Ind. 554, 70 N.E. 814. Therein, the court, at 556--57 of 162 Ind., at 814 of 70 N.E., stated:

'. . . (appellant's) counsel contend that the gravamen of the offense described or defined by the section in question is that the pointing or aiming of the pistol must be purposely or intentionally done on the part of the accused person.

* * *. It will be seen that the statute declares it to be an unlawful act for anyone over the age of ten years 'purposely to point or aim any pistol,' etc. 'Purposely' as therein used means intentionally or designedly. Fahnestock v. State, 23 Ind. 231.'

Also, see, Lange v. The State (1884), 95 Ind. 114; Graham v. The State (1894), 8 Ind.App. 497, 35 N.E. 1109.

It must be concluded that proof of an intent or design by German to point a weapon at the decedent was essential to sustain the charge against him. Accordingly, it must be determined whether such element was established by the evidence introduced at trial.

Appellee State concedes that there is no direct evidence in the record as to this issue. It asserts, however, that such element could have been inferred by the trier of fact from certain circumstantial evidence which was introduced at trial.

When questions concerning the sufficiency of evidence are presented on appeal, this court may consider only that evidence which is most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. Further, it is not our function to weigh the evidence or determine the credibility of witnesses. McAfee v. State (1973), 259 Ind. 687, 291 N.E.2d 554. It has been held that a conviction may be sustained upon circumstantial evidence alone so long as the evidence is of such probative value that a reasonable inference of guilt may be drawn therefrom. Gregory v. State (1972), 259 Ind. 295, 286 N.E.2d 666. A conviction which rests in whole or in part upon such evidence will not be reversed unless this court can state as a matter of law that reasonable persons, whether they be the jury or the trial court, could not form inference with regard to each material element of the offense so as to ascertain a defendant's guilt beyond a reasonable doubt. Guyton v. State (1973), Ind.App., 299 N.E.2d 233.

In the recent case of Gaddis v. State (1969), 253 Ind. 73, 251 N.E.2d 658, Justice Hunter, speaking for our Supreme Court, summarized the rules of law stated hereinabove regarding the sufficiency of the evidence in criminal cases, and then spoke of the duties of an appellate court in examining such questions as follows:

'Although this court must be careful not to confuse its function and purpose with that of the trial court, we nevertheless should be equally as careful not to be found in derogation of our duties as an appellate tribunal, monitoring with a watchful eye the administration of justice on the trial court level.

'Judge Emmert very ably defined the tests to be used when determining the sufficiency of the evidence question in Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641, where he carefully documents each proposition of law with numerous citations to previously decided Indiana cases. We shall not attempt to duplicate that effort in this opinion. In re-affirming the tenure (tenor) of that opinion however, we would again note the basic premise from which this court begins its inquiry, namely that a defendant is presumed innocent until proven guilty. From that point on, in determining whether each material allegation of the offense is supported by substantial evidence of probative value we are guided by the following caveats:

(1) To prove an essential allegation beyond a reasonable doubt requires more evidence than to prove an allegation by a preponderance of the evidence.

(2) When there is a reasonable doubt whether defendant's guilt is satisfactorily shown, he must be acquitted.

(3) Substantial evidence means more than seeming or imaginary.

(4) The scintilla of evidence rule does not obtain in this jurisdiction.

(5) Mere suspicion of guilt or opportunity to commit the crime are insufficient to support a conviction.

Baker v. State, supra, and cases there cited.

'The essence of the above as it relates to the quantum of proof required to convict a person of a criminal offense is very aptly summed up as follows:

'The rule of law defining proof beyond a reasonable doubt has been well settled for many years and requires each juror to be so convinced by the evidence that as a prudent man he would feel safe to act upon such conviction in matters of the highest concern and importance to his own dearest and most important interests, under circumstances where there was no compulsion or coercion upon him to act at all. Chambers v. State (1953), 232 Ind. 349, 356, 111 N.E.2d 816; Morgan v. State (1921), 190 Ind. 411, 130 N.E. 528; Bradley v. State (1870), 31 Ind. 492.'

Baker v. State, supra, (138 N.E.2d) pp. 644, 645.

'Mindful of the above, this court must make its determination on the record of the evidence submitted in each particular case. As we said most recently in Liston v. State (1969), 252 Ind. 502, 250 N.E.2d 739, a recognition of our appellate responsibilities in this regard may require a probing and sifting of the evidence to determine whether the residue of facts warrants a conviction; where such residue fails to meet the requirement that...