Henson v. State

• Decision Date: 25 August 1976
• Docket Number: No. 1175S308,1175S308
• Citation: 265 Ind. 233,352 N.E.2d 746
• Parties: Frank Dewayne HENSON a/k/a Frank Dewayne Shipman, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 746

352 N.E.2d 746

265 Ind. 233

Frank Dewayne HENSON a/k/a Frank Dewayne Shipman, Appellant, v. STATE of Indiana, Appellee.

No. 1175S308.

Supreme Court of Indiana.

Aug. 25, 1976.

John D. Breclaw, Griffith, for appellant.

Theodore L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was charged in a two count indictment with murder in the second degree and kidnapping, tried before a jury which returned a verdict of guilty as charged on both counts, and he received a sentence of fifteen to twenty-five years for murder and life for kidnapping.

Ralph Perez, the main witness for the State testified that he and appellant were driving around in a car on the evening of April 25, 1973, and that appellant asked him to take him to see his ex-wife Linda so that he could talk to her to see if he could get custody of his child. Perez agreed and they drove to a nightclub called Dante's in Gary, Indiana where she worked, arriving there about 9:00 o'clock p.m. Perez stayed with the car and appellant went inside and returned in a few minutes with the victim and opened the door of the car saying, 'I want to talk to you Linda.' The victim replied, 'Can't we talk inside?' At this point appellant pulled a pistol from his pants and told her to get in the car. The witness Perez tried to calm him down but appellant put the gun in his face and told him to get in and drive. They drove around awhile and finally parked on a small gravel road in East Gary at 25th and State Streets. After they stopped the victim agreed to have sexual relations with appellant saying, 'If I give it to you, will you leave me alone and take me back.' Appellant then said 'Sure I will.' On her request for privacy, appellant told the witness Perez, 'Ralph, step outside of the car and don't move.' The testimony of the witness describing the events which immediately followed these instructions is as follows:

'A. So I stepped outside of the car and I was looking for a place to run and I heard the front door open and Frank got out and I started ducking beside the car. I thought he was going to shoot me and Linda stepped out and Linda stepped and Frank started shooting at her, and she started screaming.

Q. Did you actually see the defendant holding a gun that fired the shot?

A. Yes, I did.'

Linda Springman was dead on arrival at a Gary hospital the next day, having died of a bullet wound to the head. Her body was found at 25th and State Streets in Gary, Indiana. James Wilson, husband of appellant's sister, testified that appellant came to his house shortly after 10:00 p.m. on the evening of April 25, 1973, told him that he had shot Linda, and gave him a gun and shells. Some of the shells from the gun were spent. On about April 27, 1973, appellant left Lake County for Chicago, and then moved on to California.

Marsha Perez testified that she is the wife of Ralph Perez and that her husband and appellant left their residence together at about 7:00 p.m. on April 25th. The two returned to that residence after dark, and at the time her husband was shaking and thereafter appellant left their home and as he did so he told them not to tell anybody and that he would be watching them. The next night he returned to their house and stated in her presence that Ralph was the only witness and that he should have got rid of both of them at the same time and then there would be no witnesses. He told Ralph in her presence to keep his mouth shut.

Appellant contends that the State did not prove all the elements of the offenses charged. Indiana Code § 35--1--55--1 defines the offense of kidnapping as follows:

'Whoever kidnaps, or forcibly or fraudulently carries off or decoys from any place within this state, or arrests or imprisons any person, with the intention of having such person carried away from any place within this state, unless it be in pursuance of the laws of this state or of the United States is guilty of kidnapping. . . .'

Indiana Code § 35--1--54--1 defines the offense of second degree murder as follows:

'Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree. . . .'

Appellant argues that the taking of the alleged victim was not shown to have been accomplished through the use of force or against the will of the alleged victim, and that there was inadequate evidence to prove that appellant intended to carry her away from a place within the State, and that therefore there was insufficient evidence to sustain the verdict of guilty of kidnapping. The testimony presented showed, that after appellant and the victim emerged from Dante's and approached the car, he invited her into the car and then she balked, saying, 'Can't we talk inside?' Appellant then drew his pistol and told her to get in. He then pointed the gun at the witness Perez who was driving and told him to get in and drive. On appeal, this testimony is sufficient to support the jury's conclusion that the taking of Linda Springman was accomplished by force, was against her will, and was accompanied by an intent to carry her away from Dante's, her place of business.

Appellant argues that the evidence offered by the State was insufficient to support the jury's conclusion that the killing of Linda Springman was done purposely and maliciously. Recently, in McKinstry v. State, (1975) Ind., 338 N.E.2d 636, 640, in dealing with the element of the purpose we stated:

'An act is done purposely if it is willed, is the product of a conscious design, intent or plan that it be done, and is done with an awareness of probable consequences.'

And, quoting in part from McKinstry v. State, supra, in Shackleford v. State, (1976) Ind., 349 N.E.2d 150, 154, the element of malice was described as follows:

'An act is done with malice when it is done with 'any evil design in general.' In homicide, a purposeful killing is done with malice if it is done neither in self-defense nor in the heat of passion induced by sufficient provocation. McKinstry v. State, supra, at 640, and cases therein.'

And in White v. State, (1976) Ind., 349 N.E.2d 156, in regard to proof of malice and purpose in a homicide case, we said:

'As to purpose and malice, this Court, like courts in other jurisdictions, has held repeatedly that the deliberate use of a deadly weapon in a manner likely to cause death or great bodily harm permits an inference that the defendant was acting with malice and purpose.' (Citations omitted.) 349 N.E.2d at 160.

Appellant would agree with these holdings, but argues that an inference of malice and purpose does not raise because it was not established that he fired the pistol intentionally. We do not agree. According to the testimony of Perez, after the car in which the three were riding stopped, and the victim agreed to have sexual relations with appellant, appellant ordered Perez to step outside of the car and...