Jones v. State
| Decision Date | 06 February 1970 |
| Docket Number | No. 469S80,469S80 |
| Citation | 253 Ind. 456,255 N.E.2d 105,20 Ind.Dec. 219 |
| Parties | Bobby Lee JONES, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Robert J. Fink, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Edward S. Neal, Deputy Atty. Gen., for appellee.
Appellant was charged by indictment with first degree murder in the shooting death of his wife. The cause was submitted to trial by jury which resulted in appellant being found guilty of murder in the second degree.
Burns' Ind.Stat.Ann. § 10--3404 defines the offense of second degree murder as follows:
'Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree * * *.'
The sole issue presented by this appeal centers upon appellant's contention that there is a total lack of evidence to support a finding that he acted purposely and maliciously.
In determining whether there is substantial evidence of probative value to establish every material element of the crime, only that evidence most favorable to the State, and all reasonable inferences to be drawn therefrom, will be considered. Liston v. State (1969), Ind., 250 N.E.2d 739.
A review of the record discloses that appellant was separated from his wife and divorce proceedings were pending. On the evening of July 3, 1967 appellant's wife, hereafter referred to as the decedent, drove to the home of a Mrs. Hadler. The decedent had just parked her automobile alongside the home when appellant arrived in his automobile. A witness testified that appellant got out of his car with a shotgun and walked up the driveway to where the decedent was standing. He was then heard to say 'Jackie, you will never go anywhere, anymore again' whereupon he fatally shot the decedent. Appellant subsequently surrendered voluntarily to the police and admitted shooting his wife. A shotgun with a spent shell in the chamber was recovered from his automobile.
Appellant does not deny that he shot his wife. His only contention is that it was not done purposely and maliciously. In this regard much emphasis is placed upon the marital turmoil that engulfed appellant and the decedent; the fact that he did not desire the divorce; that she allegedly went out with other men; and that she failed and refused to care for and supervise their children. Although we do not doubt that such circumstances, assuming them to be accurate, may have contributed to the events of the evening of July 3, 1967, their existence does not excuse the killing, nor preclude a finding that appellant acted purposely and maliciously. We believe such a finding is sufficiently supported by the record.
A witness testified that on the day of the shooting appellant told the decedent 'that he was going to get her.' There was further testimony that several weeks before the shooting the appellant was heard to say 'I'll kill her before I'll let anyone else have her.' Another witness stated that she heard appellant, on prior occasions threaten to kill the decedent and on one occasion she testified that as she arrived to pick up the decedent the appellant was choking the decedent. Appellant's son ran out of the home shouting 'Daddy's just said he's going to kill my mom.' Other testimony reflected the fear that overcame the decedent. She was remembered to have stated on one occasion that Due to these threats and altercations the decendent slept with a hammer...
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