Harris v. State
| Decision Date | 19 December 1967 |
| Docket Number | No. 30863,30863 |
| Citation | 249 Ind. 681,231 N.E.2d 800 |
| Parties | Robert D. HARRIS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Daniel B. Burke, Jr., New Albany, for appellant.
John J. Dillon, Atty. Gen., donald R. Ewers, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from a conviction in a criminal action brought by the State of Indiana against the appellant charging him with the offense of murder in the first degree. The appellant was charged in an indictment filed in the Floyd Circuit Court which indictment reads as follows:
The appellant entered his plea of not guilty and trial was had before a jury. A verdict of guilty of murder in the first degree was returned, and appellant's sentence was fixed at life imprisonment. Appropriate judgment was timely entered upon the jury's verdict. A motion for new trial was filed and overruled by the trial court.
The issues presented to this Court by the overruling of appellant's motion for a new trial and assignment of error are as follows:
(1) That the verdict is contrary to law.
(2) That the verdict of the jury is not sustained by sufficient evidence.
(3) Irregularity in the proceedings of the trial court in that it permitted the jury to return into open court for questioning concerning the ability of the jury to reach a verdict in the absence of the appellant.
(4) The overruling of appellant's motions for mistrial and withdrawal of the submission of the case to the jury, such motions being based on newspaper articles in the Louisville Courier-Journal wherein the prosecutor was quoted as saying that the evidence so far was sufficient to convict the defendant.
The argument portion of the appellant's brief combines assignments of error numbered 1 and 2, contending thereby that the verdict is contrary to law by reason of the insufficiency of the evidence to support the conviction of murder in the first degree.
Therefore we look only to the record of the evidence most favorable to the verdict of the jury, and if there is substantial evidence of probative value to sustain each material element of the crime charged beyond a reasonable doubt, the verdict of the jury will not be disturbed by this Court. The evidence, viewed in this manner, reveals the following:
State's witness, Rosalie Garner, testified that on the day in question at approximately 4:30 P.M. she was a witness to the shooting of Joe Townsend stating that after appellant shot Townsend, the appellant stated 'I told you I would get you.'
State's witness, Mary Hendricks, testified that she was present at the deceased's home when 'The appellant just walked in and shot him.' She further identified the appellant in open court and pointed him out and stated that he was the person she saw shoot Joe Townsend, the deceased.
June Brooks, testifying for the State, testified that he knew both the deceased, Joe Townsend, and the appellant and further testified that on the day in question at 4:30 P.M. he was on the premises of Joe Townsend. He stated that he was sitting in the middle of the room and talking to other people present when the appellant walked in and after firing the gun at Townsend stated 'I told you I would get you.'
Dixie Rickman testified he was on the premises at 4:30 P.M. on the day in question and that he was standing at the foot of a bed when the appellant walked in. Rickman then testified: 'Then all at once I heard that noise, bam, and Joe said I'm gone and I moved back and Lonesome looked down at him and said I told you I would get you.' This same witness testified the person he had referred to as 'Lonesome' was one and the same person as the appellant in the case.
State's witness, Robert Barney, testified that he oiled a .45 caliber pistol for the appellant which the appellant gave to him and after oiling it he returned the gun to the appellant and the appellant then reloaded the gun. At the request of the appellant, Barney then took appellant to the home of the deceased where the appellant got out of the car and went inside the house. While the appellant was in the house Barney did not shut off the motor of his car. The appellant was gone for about three minutes. The witness then stated that the appellant later rode uptown with him and requested the witness to take him to Louisville; and upon being asked why the appellant was in a hurry to get to Louisville the appellant informed the witness that he had shot Joe Townsend.
The coroner of Floyd County identified a certain photograph of Townsend as a photo of a person whom he examined on June 2, 1964. The doctor testified that the individual died as a result of hemorrhage secondary to a bullet wound.
A pathologist also testified that he performed an autopsy on the individual in photographs labeled State's exhibits Nos. 5 and 6. The doctor further testified that the cause of death was a massive hemorrhage due to gunshot wound.
William Linck, a New Albany police officer, testified as to his investigation of the shooting on June 2, 1964, stating that when he arrived at the scene he found Mr. Townsend lying on the floor shot in the chest. The officer further testified that he knew the deceased and identified him from the photograph which is State's exhibit No. 5.
William Booth, a New Albany police officer, testified that he found a bullet that was fired from a .45 caliber revolver and that the properly identified said exhibit which is State's exhibit No. 7.
The appellant took the stand on his own behalf and contended that the gun went off accidentally and that he has no explanation as to why the pistol happened to discharge. The appellant further admitted throwing the gun into the Ohio River.
Wilbur Duncan, an expert witness on guns, testified that it takes as average of five (5) pounds of pressure on the trigger to discharge a weapon of this type.
Lastly the appellant admitted fleeing to Louisville and then to chicago.
We have recited the evidence to negate the appellant's contention that there was insufficient evidence to sustain the charge of first degree murder. It is the State's contention with which we agree that the reasonable inference of premeditation was displayed when the appellant had the pistol cleaned and reloaded it and departed immediately for the premises of Joe Townsend, the deceased. There is no question but that premeditation existed when the appellant uttered the words immediately after the shot 'I told you I would get you.'
We therefore hold with respect to assignments of error numbered 1 and 2 that there is substantial evidence to sustain the verdict of guilty of murder in the first degree.
Appellant also contends in his motion for new trial that he is entitled to a reversal due to
In support of this allegation of error, the defendant filed an affidavit which, omitting caption and signatures, reads as follows:
'Daniel B. Burke, Jr. being duly sworn upon his oath says:
1. He is one of the attorneys for the defendant.
2. That at the trial of this cause and while the jury was deliberating, the Court caused such jury to be returned into open Court at approximately 11:30 P.M. for the purpose of inquiry if there was any likelihood of its reaching a verdict.
3. That while such jury was in open Court, pursuant to the directions of the Court and while it was being questioned concerning its being able to reach a verdict, the defendant was not present in Court, but was in the custody of the Sheriff in the County Jail.
4. That while the jury was in open Court to answer questions from the Judge thereof, the defendant was not present and thereafter the jury was returned to its room to continue its deliberations after which it reached a verdict.'
In rebuttal, the State of Indiana filed a counter-affidavit which, omitting captions and signature, reads as follows:
'Joseph E. Earl, being duly sworn upon his oath says:
1. He is the prosecuting attorney in this cause.
2. That prior to the jury being called into court the attorneys for defendant waived defendant's presence, after having been asked specifically by the court if the defendant wished to be present.
3. The court asked the jury if they were hopelessly deadlocked, the jury reported they felt they could reach a verdict, whereupon the court allowed the jury to return to deliberation.
4. No instructions were given to the jury at this time.'
Ind.Ann.Stat. § 9--1801 (1956) provides:
'No person prosecuted for any offense punishable by death,...
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