Horton v. State, No. 476S98

Docket NºNo. 476S98
Citation354 N.E.2d 242, 265 Ind. 393
Case DateSeptember 23, 1976
CourtSupreme Court of Indiana

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.

Page 243

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 [265 Ind. 394] 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,

Page 244

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...

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15 practice notes
  • Greider v. Duckworth, No. 82-1487
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 11, 1983
    ...of fact for the jury. Greider, 385 N.E.2d at 426; citing Preston v. State, 259 Ind. 353, 287 N.E.2d 347 (1972). See also Horton v. State, 265 Ind. 393, 354 N.E.2d 242 (1976); Norris v. State, 419 N.E.2d 129 (Ind.1981): "The trier of fact must resort to reasonable inferences based upon exami......
  • Candler v. State, No. 576S164
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1977
    ...alleged errors so as to permit their prevention or immediate correction without waste of time and effort, Horton v. State, (1976) Ind., 354 N.E.2d 242, and to give notice of the issue to the opposing party to allow the full litigation of the issue in the trial court. Hammer v. State, (1976)......
  • Inman v. State, No. 677S469
    • United States
    • Indiana Supreme Court of Indiana
    • December 21, 1978
    ...statutory element of the crime of second degree murder. Wilson v. State (1978), Ind., 374 N.E.2d 45; Horton v. State (1976), Ind., 354 N.E.2d 242; Barnes v. State (1975), Ind., 330 N.E.2d 743; Turner v. State (1972), 258 Ind. 627, 280 N.E.2d 621; Miller v. State (1961), 242 Ind. 678, 181 N.......
  • Feggins v. State, No. 676A176
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 1977
    ...value from which the trier of fact could reasonably find the existence of each element of the offense. Horton v. State, (1976) Ind., 354 N.E.2d 242. Second degree murder is defined in Ind.Code § 35--1--54--1, which 'Whoever, purposely and maliciously, but without premeditation, kills any hu......
  • Request a trial to view additional results
15 cases
  • Greider v. Duckworth, No. 82-1487
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 11, 1983
    ...of fact for the jury. Greider, 385 N.E.2d at 426; citing Preston v. State, 259 Ind. 353, 287 N.E.2d 347 (1972). See also Horton v. State, 265 Ind. 393, 354 N.E.2d 242 (1976); Norris v. State, 419 N.E.2d 129 (Ind.1981): "The trier of fact must resort to reasonable inferences based upon ......
  • Candler v. State, No. 576S164
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1977
    ...alleged errors so as to permit their prevention or immediate correction without waste of time and effort, Horton v. State, (1976) Ind., 354 N.E.2d 242, and to give notice of the issue to the opposing party to allow the full litigation of the issue in the trial court. Hammer v. State, (1976)......
  • Inman v. State, No. 677S469
    • United States
    • Indiana Supreme Court of Indiana
    • December 21, 1978
    ...statutory element of the crime of second degree murder. Wilson v. State (1978), Ind., 374 N.E.2d 45; Horton v. State (1976), Ind., 354 N.E.2d 242; Barnes v. State (1975), Ind., 330 N.E.2d 743; Turner v. State (1972), 258 Ind. 627, 280 N.E.2d 621; Miller v. State (1961), 242 Ind. 678, 181 N.......
  • Feggins v. State, No. 676A176
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 1977
    ...value from which the trier of fact could reasonably find the existence of each element of the offense. Horton v. State, (1976) Ind., 354 N.E.2d 242. Second degree murder is defined in Ind.Code § 35--1--54--1, which 'Whoever, purposely and maliciously, but without premeditation, kills any hu......
  • Request a trial to view additional results

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