Hart v. State

Decision Date17 August 1976
Docket NumberNo. 375S63,375S63
Citation54 Ind.Dec. 85,352 N.E.2d 712,265 Ind. 145
PartiesDallas HART, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

George T. Popcheff, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was indicted for first degree murder, tried by jury, found guilty of second degree murder under Ind.Code § 35--1--54--1 (Burns 1975) and sentenced to a term of imprisonment of fifteen to twenty-five years.

The questions here presented concern (1) the sufficiency of the evidence to support the elements of purpose and malice and (2) the constitutionality and correctness of several of the court's rulings restricting appellant's voir dire examination of prospective jurors.

The first question presented concerns the sufficiency of the evidence to sustain the verdict of guilty. In reviewing this allegation we do not weigh the evidence or resolve questions of credibility, but we look to that evidence and the reasonable inferences therefrom which support the verdict. Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657. The coviction will be affirmed if from that viewpoint there is evidence of probative value from which a reasonable trier of fact could infer that appellant was guilty beyond a reasonable doubt.

The evidence showed that appellant, Dallas Hart, and the alleged victim, Julia Hart, were married in 1946 and divorced in 1972. Following the divorce, they continued to reside in the same house. On September 3, 1973, he moved out because of their continuous quarreling. Even after the divorce, he was often angrily jealous and charged her with having affairs. She retaliated by complaining about his inadequacies 'in the bedroom.'

On September 16, 1973, between 5:00 and 5:30 p.m., appellant, Mrs. Hart, and their son, Stephen, were having dinner at Mrs. Hart's house. She announced her intention to marry one Raymond Hayes. Appellant became frantic and upset and fell on the floor crying and shaking. This lasted for about twenty minutes. Then he regained his composure and again sat down at the table. After an additional fifteen minutes, appellant and Stephen got up from the table and left the house. They parted, and appellant went to his daughter Sharon's house a few blocks from Mrs. Hart's house. He told her that her mother had plans to marry another man and asked her to intervene with Mrs. Hart on his behalf. She refused. He left that house. Thirty to forty-five minutes later, he returned and again asked his daughter to go and talk with her mother. She refused, but, at his request, dialed her mother's unlisted number for him. She then handed him the phone and heard him mumble something and then blurt out into the phone, 'Is the son of a bitch worth your life?' After hanging up the phone and preparing to leave, he handed her a slip of paper containing his mother's address and telephone number, and said 'Sherry, if anything happens, call my mother.' She then saw him drive away a short distance, park a half block from Mrs. Hart's house, and start across the street.

About seven o'clock, Sharon received a telephone call from appellant. He said, 'My God! Get down here quick, Sharon! I've killed your mother!' Her husband came in and calmed her down. She dialed her mother's number, and appellant answered. She said, 'My God, Dad, what did you do it with?' He replied, 'I shot her with a gun. My God, get down here quick! I've shot her with a gun.'

Appellant also phoned his son, Stephen, at about the same time. Appellant said, 'Steve, son, get over here quick. I've just killed your mother.' Stephen went over and found his father lying on the body of Mrs. Hart.

A neighbor testified that, on the evening in question, she saw appellant break a kitchen window and enter the house. Shortly thereafter she heard two loud noises and then saw appellant in the house at the telephone.

An investigating officer, arriving at the scene, found a .38 pistol on a utility table beneath a wall telephone. The pistol belonged to appellant. The pistol had unidentifiable prints on it, but blood on it matched the type of the victim. There were five cartridges in the weapon, two of which were spent.

Mrs. Hart died of a head wound. She had a bullet wound in her hand also. A ballistics technician testified that the bullet taken from her brain could have been fired from appellant's pistol. A bullet hole was discovered in the ceiling above the stairs leading to the bedroom in which Mrs. Hart's body was found.

Appellant believes that there is no evidence here from which a reasonable jury could infer that he killed Mrs. Hart. The evidence set out above shows that, minutes after threatening her life over the phone, he went to her house and broke into the kitchen window. Shortly thereafter, two loud sounds were heard coming from the house. Within minutes, he was observed using the telephone at which the bloody pistol was found. He informed both his son and daughter that he had killed Mrs. Hart. Her body was discovered in the house minutes later. She died from a gunshot which could have come from appellant's pistol. From this evidence the jury might reasonably conclude beyond a reasonable doubt that appellant shot her and that she died from that wound.

Appellant also argues that there is no evidence from which a reasonable jury could infer that he killed Mrs. Hart purposely and maliciously. This Court recognizes that the deliberate use of a deadly weapon in a manner likely to cause death or great bodily harm permits an inference that the accused was acting with malice and purpose. Livingston v. State, (1972) 257 Ind. 620, 277 N.E.2d 363; Jones v. State, (1970) 253 Ind. 456, 255 N.E.2d 105. Appellant claims that he did not wield the pistol in a manner likely to cause death or great bodily harm. According to appellant, the evidence shows that the fatal bullet first passed through Mrs. Hart's hand and then into her head causing death. Appellant argues that the evidence shows only that a bullet was fired at Mrs. Hart's hand, a non-vital part of the human body, and that it struck her in the head only fortuitously. We must reject this argument. Other evidence disclosed that the bullet entered the palm of the hand and exited through the back of the hand. Powder burns were left on the palm of the hand. This would permit the inference that at the time the shot was fired, appellant was holding the gun slightly more than an arm's length away from Mrs. Hart, pointing it in her direction. The jury, therefore, could have reasonably discounted the wound in the hand upon the basis that it occurred as Mrs. Hart attempted to ward off his attack with her outstretched hand.

Moreover, here there is additional evidence of malice and purpose. Appellant returned to Mrs. Hart's house to harm her, forcibly entered the house, and twice fired the pistol. There is no indication that she was armed or posed any physical threat to him. Upon the basis of the evidence presented, the jury was warranted in its finding that appellant killed Mrs. Hart with malice and purpose.

Appellant also contends that the State's evidence was insufficient in that it failed to show that appellant did not act in the heat of passion and that, therefore, the evidence would support only a conviction for voluntary manslaughter. Again we disagree. More than an hour elapsed between appellant's violent reaction to Mrs. Hart's announcement of her plans to remarry and the shooting. During that time, appellant spoke with his son and daughter in a cogent fashion and set in motion a design to harm Mrs. Hart if she did not change her mind. As one step in this plan, appellant gave his daughter a slip of paper with his mother's address and telephone number on it and asked her to call his mother if anything happened. Here, the evidence warrants the conclusion that appellant's anger and emotional upset had cooled off and was supplanted by a design to grievously...

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19 cases
  • Harrison v. State
    • United States
    • Indiana Supreme Court
    • January 4, 1995
    ...v. State (1981), Ind., 424 N.E.2d 1007, 1008; Lynn v. State (1979), 271 Ind. 297, 298-99, 392 N.E.2d 449, 451; Hart v. State (1976), 265 Ind. 145, 151, 352 N.E.2d 712, 716; see also Linder v. State (1985), Ind., 485 N.E.2d 73, 77 (upholding a 35 minute per side limitation in a death penalty......
  • People v. Robinson
    • United States
    • United States Appellate Court of Illinois
    • February 10, 1984
    ...Carbo v. United States (9th Cir.1963), 314 F.2d 718, cert. denied (1964), 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498; Hart v. State (1976), 265 Ind. 145, 352 N.E.2d 712). Therefore, it appears to us that if the procedure used is not an abuse of discretion, then there can be no such abuse i......
  • Romack v. State
    • United States
    • Indiana Appellate Court
    • March 31, 1983
    ...fairly on the issue of guilt and to permit discovery of grounds for peremptory challenges and challenge for cause. Hart v. State, (1976) 265 Ind. 145, 352 N.E.2d 712 and Lamb v. State, (1976) 264 Ind. 563, 348 N.E.2d 1. One permissible manner by which an attorney may discover grounds for ch......
  • Lynn v. State
    • United States
    • Indiana Supreme Court
    • July 25, 1979
    ...of facts nearly identical to the present case, this court upheld a twenty-minute time limit on voir dire in the case of Hart v. State, (1976) 265 Ind. 145, 352 N.E.2d 712. In that case, as here, the parties were allowed to supplement the voir dire of the judge by submitting written question......
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