Hulburd v. State, 30326

• Decision Date: 25 March 1964
• Docket Number: No. 30326,30326
• Citation: Hulburd v. State, 197 N.E.2d 169, 245 Ind. 672 (Ind. 1964)
• Parties: Charles Ross HULBURD, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 169

197 N.E.2d 169

245 Ind. 672

Charles Ross HULBURD, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 30326.

Supreme Court of Indiana.

March 25, 1964.

Warren R. Everett, Terre Haute, for appellant.

Edwin K. Steers, Atty. Gen., David S. Wedding, Deputy Atty. Gen., for appellee.

MYERS, Judge.

Appellant was indicted for murder in the first degree. He pleaded not guilty and was tried before a jury which returned a verdict convicting him of the charge. He was sentenced to life imprisonment in the Indiana State Prison. He assigns as error the overruling of his motion for new trial and the overruling of his motion for extention of time within which to file an amended motion for new trial. The motion for new trial alleged that the verdict of the jury was contrary to law and was not sustained by sufficient evidence.

The evidence most favorable to appellee is as follows: About 1:00 a. m. on December 28, 1961, appellant arrived at a restaurant known as Chuck's Supper Club, in Terre Haute, Indiana. When he entered, he was told by Chuck Miller, who operated the restaurant, that if he had 'that pistol' on him, he had better take it home. It appears that a few weeks previous to this, in the parking lot behind the restaurant, appellant had pulled a pistol out and shot it in the air, causing a disturbance. Appellant laughed this off and went in and sat down on a stool at the counter. Nellie Corby, the deceased, and another girl came in between 1:15 and 1:30 a. m. They sat at a table near where appellant was seated. Shortly afterward, appellant got up and left by the front door. The girl seated with Nellie began talking in a loud, noisy and vulgar manner. She was apparently intoxicated. Miller warned them several times and finally told them to leave the restaurant. Nellie left by the front door anywhere from fifteen to twenty minutes after appellant had departed. She was seen walking north on Ninth Street by herself.

Appellant was walking south on Ninth Street when he heard some one call 'Hey, you.' It was Nellie, who was standing north of the restaurant. There was a conversation between them wherein she invited him to her place for a drink and he agreed. They started to walk across the railroad tracks and came to the intersection of Spruce and Ninth Streets. There, according to the signed statement of appellant, as they started to cross the intersection, she slipped in the snow which was on the ground and he attempted to grab her to prevent her from falling. She told him to keep his 'crummy' hands off of her and started to hit him with her purse. Appellant had a 32-caliber Walther automatic pistol which he was carrying in his waistband. He pulled it out in order to scare her. He gave several different versions to the police as to what happened then. The gun went off, shooting and killing her. He claims it was accidental and unintentional. After she fell to the ground, he saw blood and that she was lying very still. The next thing he did was to pick her up and carry her about half a block to an alley where he placed her body at the entrance to a garage. At that time he left. The body was discovered there a few hours later.

Appellant did not testify on his own behalf, but three different statements, dated December 31, 1961, January 2, 1962, and January 24, 1962, were signed by him and admitted into evidence.

Appellant argues that as a matter of law the jury could not infer that the shooting of Nellie Corby by appellant was premeditated or malicious, so that he was not guilty of first-degree murder. However, we find that from a review of the evidence the jury could have arrived at such a verdict. There was no dispute over the corpus delicti. Nellie Corby was found dead as the result of a 32-caliber bullet which entered her head above the left ear and came out of her neck. The shot was downward in direction. There were no visible powder burns on her head. An F.B.I. laboratory technician stated that with this type of automatic pistol, if it were fired at a distance of under three-and-a-half to four feet, powder burns would be expected. The jury could have drawn the inference from this testimony that she was shot from a distance of more than three-and-a-half to four feet. A physician testified that in his opinion she was already on the ground when shot.

In his statement of January 2, 1962, appellant said in part as follows:

'I knew she was intoxicated and when she started to fall, I grabbed her to keep her from going down. When I did this she seemed to go into a rage, cursing me and hitting me with her purse. I guess she was under the impression I was trying to attack her or rob her or something. It was then that I pulled from my waistband with my right hand the gun I was carrying and this was when I worked the sliding mechanism on the gun to put the shell into the chamber and the gun in firing position. When I did this it didn't seem to frighten her and she reached toward the gun. I pulled away from her. She was still swinging her purse. I became panicky and fired the gun. The woman then dropped what seemed to be right at my feet. Just before the gun was fired, she was approximately an arms distance plus the length of her purse away from me for she was still swinging it. When the gun was fired she had grabbed my hand and I pulled back, pulling it away from her and this is when it fired.'

In the statement of January 24, 1962, he stated in part:

'When I walked out the front door I did not see anyone and started to walk south on 9th Street. As I got in front of 526 North 9th Street I heard someone calling out as if they were calling me. I turned and there was a woman standing near the curb just to the north of Chuck Miller's. I didn't know the woman and wasn't sure she was calling me so I walked a few more feet and was in front of 522 North 9th Street and when I looked around I saw that the woman was fairly close to the Pennsylvania Railroad tracks. She was alone so I thought perhaps it might be someone I had known so I decided to go and see who it was. The woman was still walking north on 9th Street and I continued after her and finally caught up with her on the north side of Spruce Street, a few feet west of where 9th Street continues north. We walked along talking, I was walking to her left. When we reached the corner she paused for a moment, I then told her I had some whiskey and suggested that we go to her place. She answered and became irritated and I don't know just what she did say but she turned and started off the curb. I knew she was intoxicated and when she started to fall, I grabbed her to keep her from going down. When I did this she seemed to go into a rage, cursing me and hitting me with her purse.

'I guess she was under the impression I was trying to attack her or rob her or something.

'It was then I pulled out the gun I had in my waistband with my right hand, when she saw the gun she grabbed for it, she got hold of my right arm. The gun didn't seem to scare her at all and when I pulled away from her I worked the sliding mechanism to put the gun into firing position, during this time she was still fighting me by swinging her purse. She again grabbed at the gun and again grabbed my arm. I pulled away...