Johnson v. State

Decision Date13 June 1972
Docket NumberNo. 971S273,971S273
Citation283 N.E.2d 532,258 Ind. 648
PartiesRobert Lee JOHNSON, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

John O. Moss, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by Robert Lee Johnson, appellant (defendant below), from a conviction for assault with intent to kill. Appellant and another were charged jointly with the offenses of entering to commit a felony and assault with intent to kill. Appellant entered a plea of not guilty and waived trial by jury. He was tried separately to the court and was found not guilty on the charge of entering to commit a felony and guilty on the charge of assault with intent to kill. Appellant was sentenced to the Indiana Reformatory for not less than two (2) nor more than fourteen (14) years. His Motion to Correct Errors was overruled and this appeal followed.

Appellant has five main contentions.

(1) The State failed to establish a prima facie case against the appellant in its case in chief and it was therefore error not to grant appellant's Motion for Discharge.

(2) The evidence was insufficient to support a finding of guilty beyond a reasonable doubt.

(3) The Court erred in denying appellant's Motion in Arrest of Judgment which claimed the affidavit failed to state a public offense.

(4) The Court committed prejudicial error in denying appellant's Motion to Separate Witnesses.

(5) The Court erred in denying appellant's Motion to Consolidate for hearing on the Motion to Quash and in denying appellant's Motion to Consolidate this case with two other cases apparently pending.

We will consider together the first two contentions concerning whether or not the State established a prima facie case and whether the evidence was sufficient. In reviewing the sufficiency of the evidence, this Court has stated that we will not weigh the evidence on appeal nor will we determine the credibility of witnesses. Only that evidence most favorable to the State and the reasonable inferences to be drawn therefrom will be considered. As long as there is substantial evidence of probative value sufficient to establish every material element of the crime beyond a reasonable doubt, the judgment will not be disturbed. Jackson v. State (1971) Ind.,275 N.E.2d 538; Daniels v. State (1971), Ind., 274 N.E.2d 702; Valentine v. State (1971), Ind., 273 N.E.2d 543.

The evidence most favorable to the State is as follows. Two men wearing ski masks entered the Jenkins Gun Shop at about 9:15 A.M. on February 20, 1971. One of the men removed a .22 calibre rifle from a box he was carrying, pointed it at the teller and announced it was a hold-up. At this point, the other man, who was described as wearing a red and blue ski mask and who was not carrying a gun, noticed the owner of the store walking in from the back and instructed the man with the rifle to 'Get the one in the back.' An exchange of gun fire followed and the masked men ran from the store.

At approximately this time, a man in the barbershop next door heard the shots and ran to the door. He saw two men wearing ski masks running from the direction of Jenkins Gun Shop. One of the men was wearing a red and blue ski mask, a red sweat shirt, and dark trousers. He ran to a white Ford automobile and drove away. About half-way down the block, he slowed down and the other man climbed into the car. The witness from the barbershop then leaped into his own car and followed. Eventually the white Ford stopped and the witness pulled up behind it. At this point, neither man was wearing a ski mask. The driver of the car who was wearing a red sweat shirt jumped out of the car and ran. The witness from the barbershop positively identified this man as being the appellant.

At this time, the State rested its case. Without considering whether this evidence was sufficient to convict, it was undoubtedly sufficient to establish a prima facie case by the State. 'Prima facie' means such evidence as is sufficient to establish a given fact and which will remain sufficient if uncontradicted. Rene's Restaurant Corp. v. Fro-Du-Co Corp. (1965), 137 Ind.App. 559, 210 N.E.2d 385. It had been established that two men in concert fired upon another human being; that they were then followed and one of them was positively identified as being appellant.

Appellant was completely unable to contradict this evidence during the presentation of his case. On the other hand, on rebuttal the State presented further evidence to establish appellant's guilt. A policeman testified that he came upon the scene as the driver was running from the white Ford. He noted that the man was wearing a red sweat shirt and he positively identied appellant as being that man. The officer found the other man still in the car and also found two ski masks and a .22 rifle.

Appellant asserts vigorously that, because there were no witnesses from the actual scene of the crime who could positively identify him and the possibility existed that the man who followed them may not have had the car in sight at all times, the evidence was circumstantial and every reasonable hypothesis of innocence was not precluded. However, the key to this is 'reasonable'. We are unable to imagine any reasonable hypothesis to indicate his innocence; on the contrary, the evidence leads inalterably to his guilt.

The elements of this crime are an assault together with the intent to kill. See IC 1971, 35--13--2--1 (Ind.Ann.Stat. § 10--401a (1971 Supp.)) Although it appears that appellant was not the man who fired the shots, he was clearly an accomplice and can be charged the same as a principal. See IC 1971, 35--1--29--1 (Ind.Ann.Stat. § 9--102 (1956 Repl.)); Tibbs v. State (1970), Ind., 263 N.E.2d 728; Cline v. State (1969), Ind., 252 N.E.2d 793. IC 1971, 35--13--4--7 (Ind.Ann.Stat. § 10--402 (1956 Repl.)) states:

'Whoever, having the present ability to do so, attempts to commit a violent injury upon the person of another, is guilty of an assault . . .'

In this case, there was clear proof of an attempt to do violent injury and it was at the command of the appellant. Intent to kill may be inferred from the deliberate use of a deadly weapon in a manner calculated to produce death. Stock v. State (1969), 252 Ind. 67, 245 N.E.2d 335; Liston v. State (1969), 252 Ind. 502, 250 N.E.2d 739. The intent to kill is thus demonstrated both from the use of the rifle by the other man and from appellant's command to 'Get the one in back.' The only question concerning the evidence in this case would be the identification of the appellant as one of the participants and this was clearly proven by an unbroken chain of evidence.

Appellant's next contention is that the affidavit failed to state a public offense. The pertinent portions of the affidavit are that appellant:

'. . . did then and there unlawfully, feloniously, and purposely attempt to commit a violent injury to the person of one Howard Jenkins, a human being . . . then and there having the present ability to commit such violent injury, by then and there feloniously and purposely attempting to shoot said ...

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