Johns v. State, 30996

Decision Date19 September 1968
Docket NumberNo. 30996,30996
Citation251 Ind. 172,240 N.E.2d 60
PartiesWille B. JOHNS, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

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

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


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.

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:


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 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 (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 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 during several conversations which provided the investigating officers with a portion of the information contained in the affidavit for the search warrant. Moreover, on October 18, 1964, appellant was induced to sign, without either the advice or presence of counsel, a document entitled, 'Consent For Blood Examination.' This document purportedly contains appellant's consent to have his blood typed and compared with decedent's blood, and with the blood found on the gray trousers that were confiscated from appellant's home on September 17, 1964. Further, other conversations took place on numerous occasions, and from which the police garnered information from appellant concerning his relations with decedent and other matters relevant to the investigation. At no time during these conversations was appellant either represented or advised by counsel.

On October 19, 1965, appellant, through his counsel, filed a Verified Petition for Writ of Habeas Corpus. In response to the petition a Writ of Habeas Corpus was issued on October 22, 1965.

On October 21, 1965, appellant filed a written Motion for the Production of the Names and Addresses of Witnesses. In view of its importance, the petition is set out in full.

'Comes now the petitioner in the above entitled cause, which is a charge of First Degree Murder, without bond, and respectfully prays the Court for an Order requiring the State of Indiana, the Sheriff of Marion County, the Prosecuting Attorney of Marion County, and any and all law enforcement agencies of Marion County, Indiana, who may have and do have any relevant, germane and pertinent evidence and information relating to this cause, to give and turn over to petitioner and his Attorney of record, William C. Erbecker, the names and addresses that the State of Indiana has in their possession concerning said cause and which the State of Indiana intends to and will rely on in the prosecution of this cause.

Petitioner further says that the production of the same is essential to a proper presentation of the issue raised in the VERIFIED PETITION FOR WRIT OF HABEAS CORPUS heretofore filed in this cause.

WHEREFORE, petitioner respectfully prays that this motion be sustained for the reasons hereinabove enumerated.'

In response to appellant's motion, the trial court issued the following order:

'Comes now the petitioner in the above entitled cause, by Counsel, and having heretofore filed his MOTION FOR PRODUCTION OF THE NAMES AND ADDRESSES OF WITNESSES on _ _, _ _, which said Motion is in the words and figures as follows, to-wit:


And the Court having seen and examined said Motion and being duly and sufficiently advised in the premises, now grants and sustains the same.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Prosecuting Attorney of Marion County shall deliver over and give to the petitioner Willie John and/or her (sic) Attorney of record, William C. Erbecker, forthwith the names and addresses of any and all witnesses which he has in his possession concerning said cause and which the State of Indiana intends to and will rely on in the prosecution of this case, all of which the said Prosecuting Attorney of Indiana is ordered to do forthwith.'

Appellant, on October 25, 1965, filed a motion to suppress and reject evidence, on the grounds that at the time appellant was arrested and searched the arresting officers did not: (1) See appellant commit any misdemeanor; (2) Have a warrant for the arrest of appellant or a search warrant for his person; (3) Have probable cause to believe that appellant had committed a crime.

A Verified Motion to Quash Search Warrant was filed by appellant on January 24, 1966...

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