Horton v. State

• Decision Date: 23 September 1976
• Docket Number: No. 476S98,476S98
• Citation: 354 N.E.2d 242,265 Ind. 393
• Parties: Clarence HORTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 242

354 N.E.2d 242

265 Ind. 393

Clarence HORTON, Appellant, v. STATE of Indiana, Appellee.

No. 476S98.

Supreme Court of Indiana.

Sept. 23, 1976.

Robert R. Garrett, Merrillville, for appellant.

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

DeBRULER, Justice.

Appellant, Clarence Horton, appeals from his conviction of second degree murder, Ind.Code § 35--1--54--1 (Burns 1975), for which he was sentenced to fifteen to twenty-five years imprisonment.

On December 17, 1974, appellant and two companions visited the Shrimp Harbor Restaurant in East Chicago in the early morning hours. At the Shrimp Harbor appellant was approached by the victim, who owned a nearby tavern, called 'The Place.' The victim asked appellant if appellant 'wanted to make some money,' and appellant agreed to go with the victim to his tavern. Appellant and his companions followed the victim to the tavern. Appellant took a pistol from Tommie Lewis, one of his companions, and followed the victim into the tavern. After a scuffle just inside the doorway appellant shot the victim once in the head.

Appellant was arrested and after receiving Miranda warnings gave a statement to the East Chicago Police in which he admitted going to the tavern and shooting the victim. He related that when he arrived at the tavern he demanded the money the victim had spoken of and that thereupon the victim had attacked him. Appellant admitted taking the victim's checkbook, thinking it to be a wallet, and firing one shot as he fled, which he claimed was not aimed at the victim.

At appellant's trial the State's evidence consisted chiefly of appellant's statement and a description of the shooting by Tommie Lewis, one of appellant's companions. A jury convicted appellant of second degree murder.

Appellant raises two questions on appeal.

First appellant urges that there was insufficient evidence of purpose and malice which are necessary elements of the offense of second degree murder. This Court has described purpose in the following terms:

'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.' McKinstry v. State (1975), Ind., 338 N.E.2d 636, 640.

Malice has been defined thus:

'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 selfdefense nor in the heat of passion induced by sufficient provocation. McKinstry v. State, supra, at 640, and cases therein.' Shackleford v. State (1976), Ind., 349 N.E.2d 150, 154.

Both purpose and malice are mental states which must be proved by circumstantial evidence. This Court has frequently reiterated that malice and purpose may be inferred from the deliberate use of a deadly weapon in a manner likely to cause death or great bodily harm. White v. State (1976), Ind., 349 N.E.2d 156, 160; Taylor v. State (1973), 260 Ind. 264, 295 N.E.2d 600. Appellant testified on his own behalf that the victim was a homosexual who had attacked him in the tavern. The jury could have believed this testimony, but there was also ample evidence from which the jurors could have concluded that appellant shot the victim in the course of an argument over the money the victim had promised appellant, or in the course of an attempted robbery. In reviewing a verdict for sufficiency of the evidence, we do not resolve questions of credibility or weigh the evidence, but looking to that evidence which supports the...