Kelley v. State, 28807

• Decision Date: 11 March 1953
• Docket Number: No. 28807,28807
• Citation: 231 Ind. 671,110 N.E.2d 860
• Parties: KELLEY v. STATE.
• Court: Indiana Supreme Court

Page 860

110 N.E.2d 860

231 Ind. 671

KELLEY v. STATE.

No. 28807.

Supreme Court of Indiana.

March 11, 1953.

T. Ernest Maholm, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., J. Emmett McManamon, former Atty. Gen., John Ready O'Connor and William T. McClain, Deputy Attys. Gen., for appellee.

EMMERT, Chief Justice.

A jury by its verdict found appellant guilty of murder in the first degree while in the perpetration of a robbery as charged in the first count of an indictment, and fixed the punishment at imprisonment for life. This count was not tested by a motion to quash under § 9-1129, Burns' 1942 Replacement, but before sentence appellant filed a motion in arrest of judgment, under § 9-2001, Burns' 1942 Replacement, which was overruled by the trial court, and this ruling is assigned as error here.

The averments of the first count questioned here are as follows:

'The Grand Jurors * * * on their oath present that one Michael Kelley, on the 10th day of June, A. D. 1950, at said County and State aforesaid, did then and there unlawfully feloniously kill and murder one Albert M. Thayer in the perpetration of a robbery by then and there unlawfully and feloniously beating, striking, choking, kicking and hitting with a blunt object the body and head of the said Albert M. Thayer, thereby inflicting a mortal wound upon the said Albert M. Thayer, of which mortal wound the said Albert M. Thayer then and there sickened and languished, and of which mortal wound the said Albert M. Thayer died on or about the 10th day of June, 1950 in the county and state aforesaid, * * *'. ¹

The manner and means of causing death were not charged with the technical exactness generally found in an indictment for murder in the first degree, but it is not necessary to decide whether this part of the charge was sufficient if it had been questioned by a motion to quash under the fourth clause of § 9-1129, Burns' 1942 Replacement, that the indictment did not state the offense with sufficient certainty. ²

There was evidence in the record that the appellant, who was then 16 years of age, conspired with one Carol Dooley to rob the decedent, and this plan was made known to one of their friends, James Chalfin, who agreed to the robbery. At the scene of the crime, after the decedent had exhibited some manifestations of unnatural affection toward Dooley and appellant, a fight occurred between him and appellant and Dooley, in which affray Chalfin later joined, during which the victim was hit and struck on and about the face and his body with fists, a black metal toy cap pistol, the heel of a shoe used as a club, and the victim was also kicked by one of the three. The force of the blows fractured the victim's skull in two places and caused a concussion of the brain, from which he died before the next morning. There was no absence of a statement of the manner of death and the means by which it was effected. In Romary v. State, 1945, 223 Ind. 667, 670, 671, 64 N.E.2d 22, 23, this court stated the law applicable under the record in this appeal as follows:

'In considering a motion in arrest, all merely technical defects will be disregarded, Woodsmall v. State, 1913, 179 Ind. 697, 699, 102 N.E. 130, and a fact fairly and rationally inferable from facts pleaded, though stated argumentatively and indirectly, may be deemed as averred. Agar v. State, 1911, 176 Ind. 234, 94 N.E. 819. A material fact, constituting the offense, if stated in a defective manner or form, may on motion to quash, render the indictment or affidavit insufficient, while such defect, on motion in arrest, would be cured by verdict. Woodworth v. State, 1896, 145 Ind. 276, 43 N.E. 933, and cases cited; Woodsmall v. State, supra. The evidence may cure a defect in the affidavit as against a motion in arrest. Jenkins v. State, 1919, 188 Ind. 510, 514, 124 N.E. 748; Crumley v. State, 1933, 204 Ind. 396, 398, 184 N.E. 533.'

See also Pope v. State, 1949, 227 Ind. 197, 201, 84 N.E.2d 887. Any indefiniteness was cured by the evidence, and there was no error in overruling the motion in arrest of judgment.

The robbery and homicide occurred on a private roadway about 100 rods from a public highway near Mt. Zion Church in Fall Creek Township, Hamilton County. After the decedent became unconscious he was dragged a short distance, and Kelley removed from his person a billford, which contained $28, and a watch. Dooley's shirt had blood on it, and this was left on a small bush near the body. Kelley threw away the cap pistol, which was never found. They took decedent's Oldsmobile car and drove back to Kelley's home where Dooley put on another shirt, and then the three started out westward on U. S. Highway No. 40 for California.

The next day, which was Sunday, June 11th, at about noon, about four miles west of Springfield, Missouri, on highway No. 166, the Oldsmobile of decedent in which appellant, Dooley and Chalfin were riding, collided with a tractor-trailer truck in the middle of a long bridge, thereby causing the truck to 'jackknife' and sideswipe a third vehicle. As a result of the collision the gasoline tank on the truck was broken, spreading gasoline on the truck driver. The sparks from the collision ignited the gasoline and the truck driver jumped off of the bridge in order to extinguish the flames, but he was burned so severely he subsequently died. Appellant, Dooley and Chalfin were taken to the hospital in Springfield and thereafter put in custody in the county jail. Appellant received a cut lip, but was not unconscious at any time. Each was placed in a separate cell at the jail, and thereafter each was questioned separately by the officers there.

We have carefully examined the entire record and we are of the opinion that the statement which appellant made to the authorities in Springfield, which was not introduced in evidence at the time of the trial, was not coerced, nor was appellant deprived of due process of law under the Fourteenth Amendment. Appellant was questioned separately several times by several officers during the daytime and nighttime. However, there is no contention by appellant that any physical force was used upon him, nor was he deprived of food or water. The evidence does not show he was physically or mentally exhausted at the time of any questioning. His cell had a bunk in it and a light, and according to appellant's own testimony he slept quite often. The following Monday his mother, sister, and two brothers-in-law from Indianapolis visited with him in his cell for 15 to 25 minutes. No officer was in the cell when this occurred. Even if it be assumed that the statement made to the Missouri officers had been coerced, there is no evidence in this record to show that the effects of the coercion continued to make the written statement given to the coroner of Hamilton County coerced or in violation of due process of law. ³

A criminal charge arising out of the accident in Missouri was filed against appellant, Dooley and Chalfin, and they were taken into court and informed of the charge and that bond had been fixed in the sum of $5,000. On Tuesday, June 13th, the officers from ...