Green v. State

• Decision Date: 27 December 1973
• Docket Number: No. 2--1072A72,2--1072A72
• Citation: 159 Ind.App. 68,304 N.E.2d 845
• Parties: Johnny Lee GREEN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 845

304 N.E.2d 845

159 Ind.App. 68

Johnny Lee GREEN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--1072A72.

Court of Appeals of Indiana, Second District.

Dec. 27, 1973.

Rehearing Denied Feb. 12, 1974.

Frederick B. Robinson, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., John McArdle, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

SULLIVAN, Judge.

The appellant-defendant Green was found guilty of assault and battery with intent to kill after trial by the court sitting without a jury. He was committed to the custody of the Department of Corrections to be imprisoned for not less than two years nor more than fourteen years. The charging affidavit alleged that Green committed the offense 'by driving his automobile at the said Carl E. Cambridge with the felonious intent then and there and thereby to kill said Carl E. Cambridge.'

The sole issue presented upon appeal is the sufficiency of the evidence to establish Green's intent to kill as opposed to his admitted intent to merely escape apprehension and arrest for shoplifting. He does not assert error with respect to the admission of any evidence.

The somewhat bizarre facts disclose that Cambridge and Ronald Henry, both Marion County deputy sheriffs, were working during their off-duty hours on December 26, 1971, at Block's department store in Lafayette Square Shopping Center in Indianapolis. About 4:30 P.M. of that day defendant, a 25 year old male dressed in women's clothing, escaped the grasp of officer Henry who had arrested him for shoplifting. Officer Cambridge, outside the store, was notified, given a description of defendant and began looking for him. Cambridge observed him on the berm of nearby West 38th Street as Green entered an automobile driven by one James Harris who had stopped to pick him up. There was no evidence that Harris and Green had any prearrangement or that they knew each other.

Deputy Cambridge and the defendant are the only witnesses who testified concerning events after defendant escaped from the store.

Cambridge's verbatim testimony, on direct examination, insofar as pertinent is as follows:

'I saw Johnny Green walking east on 38th Street. I yelled at him to stop at which time there was a white station wagon, I believe it was, it was a white car I think, it was driven by James Harris, had stopped and pulled over to the berm of the road eastbound on 38th Street thinking he was picking up a female. The car pulled over, Johnny Green ran toward the car, I was running across 38th Street trying to intercept him before he got into the car, trying to intercept her before she got into the car, as she got into the car I drew my revolver, identified myself, told her to halt, she went ahead and jumped into the car and locked all four doors, at which time Deputy Watson reached my side. I started around to the passenger side of the vehicle, at which time Johnny Green slid across the center of the front seat, the car lunged forward, the driver Mr. Harris re-applied the brakes, there was a scuffle in the front seat for the keys. Mr. Harris finally came up with them and bailed out of the car, at which time we finally got Miss Green out of the car. (When the car lunged forward) I was starting around the car, around the front of the car, figuring if I could go around to the back of the car, either way it went, she was going to try to drive off without us being there. I didn't think she would try to run over me. I went around in front of the car to keep the car from fleeing to go to the passenger side to try to get into the passenger side to get the suspect out. (When the car lunged forward, I was) in front of it. In the center of the car. Well, the car lunged forward striking me on the leg, knocking me off balance a little bit, I threw my hands on the hood. I still had the revolver in my hand, yelled out 'you hit me again and I kill you'.'

Cambridge also testified on direct examination without objection that he later talked to defendant in jail, in response to a request from defendant:

'Mr. Green related to me at the time he was sorry he had tried to run over me with the car, he wanted a quick and speedy trial, he wanted to get it out of the way and start pulling his time as soon as he could.' ¹

The only significant testimony added on cross-examination is the following:

'Q. And how far did the car lunge forward?

A. You mean in feet? I don't have any idea how far forward it lunged forward, it knocked me back three or four steps.

Q. Alright, so it moved about three or four steps, is that about right?

A. After it hit me, yes. I was probably two, maybe three feet, well the length of my arm away from the front of the car when the car lunged forward.

Q. I see, and you were able to get out of the way, is this correct?

A. I was knocked back.

Q. You were knocked back?

A. And laid up on the hood to keep from getting run over.

Q. Alright, and you were not injured in any way or were you?

A. Got some bruises but that's about it.

Q. Some bruises, alright. And then you went around to the side of the car, is this correct, after this happened?

A. Well sir, after that happened there was the scuffle in the front seat for the keys, Mr. Harris . . .

Q. You witnessed this?

A. Yes sir, I did. There was the . . . or Mr. Harris finally got the keys away from Johnny Green, he bailed out of the car at which time Dave Watson who is a Special Deputy also got him out of the car and I went back around to the drivers side of the car.'

In his testimony, defendant denied that he had apologized to Officer Cambridge and said that he had told him that it was Mr. Harris who caused the car to lurch forward and that he (defendant) pressed the brake. The court obviously did not believe this testimony. Defendant did admit that he saw the officer standing in front of the car at the time the car lurched forward, and he testified that although it was not his intent to kill Cambridge, it was his 'intention to get away from the officer.'

We affirm the judgment below upon the issue presented for our consideration but deem it advisable in light of our colleague's dissenting opinion to consider and discuss the legal principles we hold applicable to the case at bar as opposed to certain other principles of a related nature but which are not deemed applicable.

Much is contained in the case law and treatises with respect to proof of the corpus delicti--the substance or body of the crime. The necessity for proof of the corpus delicti in the context of the facts before us presents for possible consideration two separate and distinct legal principles. The first, which we deem to be the only appropriate principle here involves the sufficiency of the evidence to prove defendant's guilt beyond a reasonable doubt. If the evidence is sufficient for such purpose, it is necessarily sufficient to establish the corpus delicti also beyond reasonable doubt. In such instances therefore, it is superfluous to view the proceedings in terms of 'corpus delicti.'

The second legal premise--that upon which the dissent is apparently founded and one which we deem inapplicable to the facts before us is that a conviction may not rest solely upon a confession of guilt for as stated in Hogan v. State (1956) 235 Ind. 271, 275, 132 N.E.2d 908, 910:

'It is well established law, not only in Indiana but practically all jurisdictions where the common law prevails, that the state cannot prove the commission of a crime by the extra-judicial confession alone of a defendant. To hold otherwise runs counter to the generally accepted principles of the common law, that one may not be induced to convict himself.'

To protect against such eventuality, it is generally held that a confession is not admissible in evidence unless there is independent proof of the corpus delicti. Such independent proof, however, need not be beyond a reasonable doubt. Patton v. State (1962) 242 Ind. 477, 486, 179 N.E.2d 867, 871 somewhat apropos of the matter before us so held:

'(A)ppellant admitted to police and newsmen that he owned the car and was driving it at high speed over the course above described, prior to and at the time of the collision. However, appellant objected to the admission of testimony regarding these statements made by him on the ground that the corpus delicti had not been proved independent of these admissions and therefore the admission of these statements in evidence was error. Although there is no direct and positive testimony that the car, which was the subject of the above testimony, was, in fact, the appellant's, and that it was driven by him, all of the evidentiary facts which were in evidence combine to establish a logical inference which suports the ultimate facts that the car was the same and was being driven by appellant, since these ultimate facts are more logical and probable under the evidentiary facts submitted than is true of the contrary. Therefore, it was proper to admit the above testimony over the objection of the defendant.'

As in the Patton case, the statement of Green as testified to by Deputy Cambridge is not a confession in the pure sense. It is rather an admission. A confession must be sufficiently comprehensive as to embrace all essential elements of the crime. As stated in Wharton's Criminal Evidence (13th ed.) § 663:

'An admission is an acknowledgment by the accused of certain facts which tend, together with other facts, to establish his guilt; while a confession is an acknowledgement of guilt itself. An admission, then, is something less than a confession and, unlike a confession, putting to one side the problem of corroboration, an admission is not sufficient in itself to support a conviction.'

The distinction was well drawn in State v. Masato Karumai (1942) 101 Utah 592, 126 P.2d 1047 as follows:

'A confession is the admission of guilt by the defendant of all the necessary elements of the crime of which he is charged, including the...