Greer v. State, 168

Citation252 Ind. 20,245 N.E.2d 158
Decision Date11 March 1969
Docket NumberNo. 168,168
PartiesJudy GREER, Appellant, v. STATE of Indiana, Appellee. S 4.
CourtSupreme Court of Indiana

Warren R. Everett, Terre Haute, for appellant.

John J. Dillon, Atty. Gen., Rex P. Killian, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Chief Justice.

The Appellant was charged by indictment with first degree murder. A motion to quash the indictment was filed and overruled. The Appellant pleaded not guilty, was tried by jury and found guilty of second degree murder. Following receipt of a presentence investigation the trial court adjudged the Appellant guilty of second degree murder and sentenced her to life imprisonment. A motion for new trial was overruled.

Appellant assigns as error on appeal certain actions of the trial court in overruling the motion to quash, refusing to withdraw the submission of the case from the jury after alleged improper comments of the prosecutor in his opening statement, in overruling Appellant's objection to certain questions propounded to the witness Ford, and in admitting a written statement made by the Appellant in evidence over Appellant's objection.

The Appellant first contends that the court erred in overruling her motion to quash the indictment which indictment reads in pertinent part as follows:

'The Grand Jury of Vigo County, in the State of Indiana, good and lawful men, duly and legally impaneled, charged and sworn to inquire into felonies and certain misdemeanors in and for the body of said County of Vigo, in the name and by the authority of the State of Indiana, on their oath present that one Judy Greer, late of said County, and State on the 21st day of October, A.D., 1966, at said County and State aforesaid, did then and there unlawfully, feloniously, purposely and with premeditated malice, kill and murder one Edwin Greer, by then and there unlawfully, feloniously, purposely and with premeditated malice beating, striking, and holding said Edwin Greer in such a manner as to cause suffocation of which he, the said Edwin Greer, in the County of Vigo, State of Indiana, then and there died. And the Grand Jury aforesaid, on their oath aforesaid, do say and charge that Judy Greer did in the manner and form aforesaid, unlawfully, feloniously, purposely and with premeditated malice, kill and murder the said Edwin Greer, all being then and there contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Indiana.'

In accordance with the case of Hamilton v. State (1957), 237 Ind. 298, 145 N.E.2d 391 and Martin v. State (1963), 245 Ind. 224, 194 N.E.2d 721, we now hold that with respect to the charge of first degree murder the ruling of the trial court on the motion to quash the indictment is both harmless and moot on appeal since the Appellant was convicted of the lesser and included offense of second degree murder; and we now consider whether or not second degree murder is properly charged in the indictment.

The Appellant argues that this indictment was void because it did not contain a sufficiently certain statement of the offense. Appellant first argues that the fatal uncertainty arises from the failure of the indictment to apprise her of whether the death of the alleged victim resulted from a 'veating', a 'striking', or a 'holding in such a manner as to cause suffocation.' Appellant also argues that in the event suffocation is to be considered as the sole cause of death, she is not apprised of how 'beating' and 'striking' caused suffocation. Appellant as her last argument attacking the sufficiency of the indictment argues that if the 'striking' and 'beating' alleged in the indictment did not cause the suffocation then their presence in the indictment is surplusage and makes it fatally uncertain.

Appellant's first contention is not well taken because it is not possible to read the indictment in such a manner as to support this interpretation. The acts of 'striking', 'beating' and 'holding said Edwin Greer in such a manner as to cause suffocation' cannot be parallel acts causing death since the indictment cannot be grammatically and logically read as follows: '* * * Judy Greer * * * did * * * kill and murder one Edwin Greer, by * * * beating, striking * * * of which * * * he died.' Such a construction is too strained as this does not conform to the rules of grammer. The indictment is not susceptible of being interpreted in this manner.

In addition, the record of the trial reveals that the court in overruling the motion to quash, limited the State to proof of the cause of death by suffocation, and therefore, the Appellant knew that she need not defend against possible assertions by the State that the cause of death was 'beating' or 'striking.'

The Appellant next contends that if suffocation is the only cause of death, then the indictment is invalid because it does not contain a certain statement of how 'beating' or 'striking' caused the death by suffocation. We hasten to point out that neither is it alleged how 'holding' caused death by suffocation. In the case of Littell v. State (1892), 133 Ind. 577, 33 N.E. 417, it was held that the precise manner of applying force, or a precise medical description of the ceasing of each bodily function are matters properly for evidence at the trial. The only facts necessary to the indictment are those required by Burns Ind.Stat.Ann. § 9--1104 which reads in part as follows:

'Contents of indictment or affidavit.--The indictment or affidavit must contain:

'Second. A statement of the facts constituting the offense in plain and concise language without unnecessary repetition.'

It is clear from this indictment that the Appellant is charged with the first degree murder of Edwin Greer, and that the victim's death resulted from suffocation. The Appellant was notified by this indictment of the offense of which she was charged and that she must be prepared to defend against an allegation of death by suffocation which in turn resulted from an attack during which the victim was beat, and struck and held. There is nothing uncertain or defective in the indictment when interpreted in this manner.

The Appellant finally contends that it is reasonable to interpret the 'beating, striking' in the indictment as separate and distinct acts which did not result in death but that the act of 'holding' is the act which resulted in suffocation and death; and that as a result 'beating, striking' are surplusage and create fatal uncertainty and lack of notice of what had to be defended against.

Even if 'beating' and 'striking' are considered surplusage, the indictment will not be quashed unless, with the surplusage struck, the indictment does not contain sufficient matter 'to indicate the crime and person charged.' Drake v. State (1896), 145 Ind. 210, 41 N.E. 799, 44 N.E. 188; Burns' § 9--1127(6). When so considering the indictment it still contains a statement that the Appellant committed first degree murder by causing death by suffocation by holding, and therefore, when considered as surplusage the words 'beating, striking' being in the indictment would not result in a ruling quashing the indictment.

Even though this indictment is susceptible of two reasonable interpretations, namely, that 'beating' and 'striking' contributed to causing death by suffocation and that they were separate acts not causing death by suffocation, there is no prejudice to the substantial rights of the Appellant.

'Tenth. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.' Burns' § 9--1127(10).

The trial revealed that the alleged victim Edwin Greer was the son of the Appellant and died when six months old after having been beaten. A physician testified on behalf of the State that the victim suffered a skull fracture and broken left humerus; that the right side of the face had been pushed over and depressed and the head and face were no longer symmetrical. He further testified that the child died on his stomach, and that the injury to the child victim's head and arm occurred at the same time as the suffocation which resulted in death, and that the fractured skull and arm did not result in death. In this indictment the State chose to plead the further acts of 'beating' and 'striking' which were part of the attack that resulted in death. The Appellant was given more facts in this indictment than would have been sufficient to notify her of the offense of which she was charged and benefits from their presence in the indictment. The nature of the attack upon any alleged victim is clearly a relevant matter for the State to go into in proving that the victim died of unnatural causes.

Appellant's second argument involves the following facts: On May 20, 1966, Edwin Greer, 7 days old, was admitted to a Terre Haute hospital for treatment of head injuries. Having been notified of this, the police went to the home of Judy Greer, 19 year-old mother of Edwin, to investigate these injuries. Mrs. Greer agreed to go down to police headquarters at 10:00 a.m., May 21, 1966, to talk to the police about her child's injuries. She arrived at police headquarters without having consulted an attorney. The police asked her about the injuries to her child and she told them he had fallen off a sofa. When the police expressed disbelief at this Mrs. Greer said 'Oh well, I'll tell you the truth.' According to the police, at this point they gave her their standard advisement of constitutional rights, which consisted of the following: (1) She could have an attorney if she wanted one; (2) Anything she said could be used against her at a trial. She was asked if she wished to make a statement of her own free will, with no threats or promises, to which she answered yes. Mrs. Greer then stated to the police that she had slapped the child hard twice because it was crying and...

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