Jones v. State
| Decision Date | 23 January 1964 |
| Docket Number | No. 30355,30355 |
| Citation | 244 Ind. 682,195 N.E.2d 460 |
| Parties | Edward E. JONES, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Richard H. Montgomery, Seymour, for appellant.
Edwin K. Steers, Atty. Gen. of Indiana, Edgar S. Husted, Deputy Atty. Gen., for appellee.
Appellant was indicted for murder in the perpetration of a robbery and after a trial by jury was convicted of murder in the first degree and sentenced to life imprisonment.
The first contention on this appeal is that the verdict is not sustained by sufficient evidence.
To consider this question we must review the evidence most favorable to appellee (the State) which was as follows:
On November 14, 1961, appellant and his brother, Robert A. Jones, were hitchhiking from Chicago to Chattanooga, Tennessee, when sometime after dark they were picked up by the victim, Gerald Shibe, in his 1957 Cadillac automobile on U. S. 21 near Columbus, Indiana. Robert A. Jones got into the back seat of the car and appellant entered the front seat. As they proceeded south near the intersection of U. S. 31 and U. S. 50 near Seymour, the victim Shibe told Robert A. Jones and appellant that he had to make a right turn into Seymour as that was where he lived, that thereupon appellant's said brother using a 25 cal. automatic pistol, pulled the gun on the victim Shibe and stated he was intending to rob him and ordered Shibe to drive the car as he was directed. After driving through Seymour to a point about three miles west of town, appellant's brother ordered Shibe to pull over, stop, give the keys to him and get out of the car. In his statement appellant states that he remained in the car while his brother marched the victim Shibe out across a filed and disappeared. That appellant's brother was gone for some time and thereafter came back to the car alone and told appellant to drive on. Appellant states he replied: , to which his brother replied: 'The old man won't report this for a long time.' The brother gave appellant the keys and appellant shortly thereafter told his brother he had better get out of his army uniform as someone may have seen him and might recognize the uniform. The brother changed into civilian clothes and while the car was being driven by appellant, the car was stopped, the brother got out and threw the army uniform over a fence in a woods. The brother came back to the car and they proceeded on down the highway. Evidence was introduced that on the 15th or 16th of November 1961, the appellant drove Shibe's Cadillac automobile into a filling station at Tiptonia, Tennessee, and signed Shibe's name to an invoice for a credit card purchase of gasoline, and thereupon obtained gasoline by means of the stolen credit card.
The deceased' Shibe's body was found on November 30, 1961, near Seymour, Indiana, by an 81 year old retired railroader who was out hunting rabbits and was attracted to the body by the barking of his dogs. The body was found lying face down near a tree about 300 feet north of U. S road 50 approximately three miles west of the city of Seymour. Upon the coroner's arrival on the scene the body was found to be frozen solid with two small holes in the head near the base of the skull. The doctor performing the autopsy testified Shibe died from two gunshot wounds from a 25 cal. pistol, and removed the two bullets in question from the brain. He further testified that in his opinion it would have been impossible for appellant to have shot himself twice. A state police officer investigating at the scene found two empty 25 cal. cartridge casings within a few feet from where the body was found. The two casings above mentioned and one of the bullets removed from the victim's brain were found from microscopic examination to have been fired from the pistol used by appellant's brother.
On December 1, 1961, appellant and his brother were arrested by police officers in Gadsden, Alabama, and appellant was returned to Jackson County, Indiana, for trial. The brother was detained in Tennessee by authorities. On appellant's return to Indiana he was taken by officers to the spot west of Seymour, Indiana, where deceased's body had been found and appellant stated when they got to the scene: 'Yeah, that's where it happened, over there', and pointed over in the field to the tree.
Appellant concedes in his brief that the evidence is sufficient to show that at the time in question appellant's brother at gunpoint ordered decedent to get out of his Cadillac automobile and to march to a tree about 285 feet north of the road where he shot him twice in the head with the automatic pistol and killed him. That the victime's wallet was missing when his body was found some two weeks later. That appellant's brother returned to the car after killing decedent and requested appellant to drive on, which appellant did.
Appellant contends, however, there was no evidence the appellant killed or intended to kill the decedent nor that he intended to rob him.
In this case appellant was charged with the murder of deceased while in the perpetration of a robbery, and under the felony murder statute is was not necessary for the State to prove appellant had the intent to kill. When the killing is accomplished in the perpetration of or attempt to perpetrate robbery, the homicide is murder in the first degree, even though there is no actual purpose or intent to kill. See: 15 I.L.E. Homicide § 17, p. 302.
Appellant's counsel argues appellant had no intention to rob the victim Shibe and that there is no evidence from which it could be inferred that appellant joined or aided or abetted 1 in the robbery of deceased until after decedent's death and that robbery contemplates a living victim.
However, the evidence heretofore recited favorable to the State indicates that shortly after appellant and his brother were picked up as hitchhikers by the victim Shibe, appellant's brother pulled the gun on Shibe and stated he was intending to rob the latter. Appellant also admitted such facts to be true when he testified to the same effect as a part of his defense. Appellant further testified that he knew a robbery was then in progress but that he made no effort to stop it for the assigned reason that he didn't want to take a chance on being shot himself by his brother. This exculpatory statement by appellant together with other exculpatory statement's regarding appellant's alleged fear of his brother, in explaining his waiting for the brother in the car while the brother forced the victim to leave the car and walk into a field where the brother shot the victim, and explaining appellant's subsequent driving of the car at the brother's alleged request may well have been disbelieved by the jury in view of appellant's subsequent conduct inconsistent therewith. It is undisputed, for example, that after the victim was removed from the Cadillac automobile by the brother and robbed of the same, and shot by appellant's brother causing his death, that appellant upon driving away with his brother suggested that the said brother change out of his army uniform into other clothes to escape detection. This and the appellant's subsequent forgery a day or two later of the...
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