Johns v. State, 30996

• Docket Nº: No. 30996
• Citation: 251 Ind. 172, 240 N.E.2d 60
• Case Date: September 19, 1968
• Court: Supreme Court of Indiana

Page 60

240 N.E.2d 60 251 Ind. 172 Wille B. JOHNS, Appellant,
v.
STATE of Indiana, Appellee. No. 30996. Supreme Court of Indiana. Sept. 19, 1968.

[251 Ind. 173]

Page 61

David E. McClure, Key, Latham, McClure & McClure, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Dennis J. Dewey, Deputy Atty. Gen., for appellee.

JACKSON, Judge.

Appellant was charged by indictment with the crime of murder in the first degree pursuant to the terms of Acts 1941, ch. 148, § 1, p. 447, § 10--3401, Burns' 1956 Replacement.

Appellant entered a plea of not guilty to the charge embraced in the indictment. Trial was had by jury, which returned a verdict finding appellant guilty of murder in the second degree. Appellant was thereafter on such verdict sentenced to the Indiana State Prison for life.

[251 Ind. 174] The case at bar presents a number of unpleasant aspects of criminal procedure, practice and law, some of which have been called to our attention by appellant in his briefs and argument, and some of which the court, sua sponte, must take cognizance.

On September 17, 1964, appellant was arrested, without a warrant, in his home. A search of both his person and home, conducted without a search warrant, resulted in the confiscation of a 22 caliber rifle, a twelve gauge shotgun and a pair of trousers belonging to appellant. Neither the entry nor the search was made by invitation of the appellant. Appellant was immediately taken to the city lockup in the City of Indianapolis and at a later date was incarcerated in the Marion County Jail.

At about 10:00 p.m. on the evening of September 19, 1964, Det. Sgt. Brosius, the arresting officer, appeared at the home of Judge Saul I. Rabb, at that time Judge of Marion Criminal Court. Sgt. Brosius brought with him an affidavit for a search warrant with which he hoped to obtain a search warrant to enable him to once again search appellant's home. The affidavit, omitting formal parts, reads as follows:

'WILLIAM D. BROSIUS swears or affirms that he believes and has good cause to believe that the following article described herein which is material evidence in the unlawful killing of one Lillian Kelley on September 17, 1964, in the County of Marion, State of Indiana, is presently located in the house of one Willie B Johns, said house being a wood frame structure located and known as 1234 Madeira St., Indianapolis, Indiana:

22

One (1)/Cal. revolver, Make: Omega; That affiant makes this affidavit based on the following: That the firearms records of the Indianapolis Police Department show that the said Willie B. Johns purchased said revolver in October, 1963, and the said Willie B. Johns admitted to this affiant that he owns a 22 cal. revolver

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and that he kept the same in said house at 1234 Madeira St., (although he, the said Johns, contends that said revolver was stolen from him 'four or five days' prior to September 18, 1964); That the deceased, Lillian Kelley, was shot four [251 Ind. 175] (4) times with 22 cal. bullets on September 17, 1964, in the house of one Nathaniel Scott, at 3514 East Orange St., Indianapolis, Indiana, and was observed thereafter in death by this affiant, who saw her wounds and three of the said bullets; That the said Willie B. Johns stated to this affiant that the deceased had stayed with him overnight at said 1234 Madeira St. two weeks prior to her death, and said Nathaniel Scott stated to this affiant that the said deceased had stayed overnight in his said house at 3514 East Orange St. the night before she was killed, to-wit: September 16, 1964; That the said Willie B. Johns on September 17, 1964, identified several items of clothing to this affiant, in said house of the said Willie B. Johns at 1234 Madeira St., said clothing in said house being identified by the said Willie B. Johns as closing of the deceased, Lillian Kelley; That the parents of the deceased, Cassie V. Kelley and Elmer Kelley, stated to this affiant that the deceased had complained during the previous week (the week prior to her death) that the said Willie B. Johns had been following and bothering her, and the said Nathaniel Scott and one Lenteen Keith stated respectively to this affiant that the said Wille B. Johns had, at different times during the last few weeks, been hiding behind bushes in the neighborhood of the said house of Nathaniel Scott at 3514 East Orange St., and had peered into the front window of same on September 12, 1964.

Affiant also swears or affirms that a blue knitted sweater which the deceased was wearing when she was last seen alive at approprimately 5:10 A.M. by Nathaniel Scott on September 17, 1964, is missing, together with her slip, a piece of which was found under her body, and the search to include all three items (said gun, sweater and torn slip) will be made on the entire premises of the said house at 1234 Madeira St., and the lot upon which it is situated, said lot being fenced, approximately *' 60 .' On the basis of the above affidavit, Judge Rabb issued the requested search warrant, which reads in pertinent part as follows:

'YOU ARE, THEREFORE, COMMANDED, in the name of the State of Indiana, with the necessary and proper assistance, in the day time or in the night time, to enter into the premises described in said affidavit and there diligently search for the said 22 Cal. revolver, Make: Omega, one (1) blue knitted sweater, and torn slip aforesaid, and [251 Ind. 176] that you bring the same or any part thereof found on such search, forthwith before me, at my office, to be disposed of according to law.'

Armed with the search warrant, Sgt. Brosius, in the presence of several of appellants' neighbors as witnesses, conducted a thorough search of appellant's home on September 20, 1964. This search resulted in the finding of a 22 caliber pistol, which was subsequently identified as the murder weapon.

While in jail, appellant was informed that his pistol had been found. He was then questioned about the pistol by police officers. During the questioning appellant 80 60 .'

On the basis of the above affidavit, benefit of counsel...