Kelsie v. State
| Decision Date | 21 September 1976 |
| Docket Number | No. 1274S241,1274S241 |
| Citation | 265 Ind. 363,354 N.E.2d 219 |
| Parties | Jenna Pauline KELSIE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
James D. Lopp, Sr., James D. Lopp, Jr., Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., J. Roland Duvall, Deputy Atty. Gen., Indianapolis, for appellee.
On May 21, 1974, the Appellant, Jenna Pauline Kelsie, was found guilty of the second degree murder of Dale Leon Graham. The jury returned its verdict without stating the sentence to be imposed. On June 7, 1974, the trial judge sentenced the Appellant to imprisonment for a period of not less than fifteen nor more than twenty-five years. A motion to correct errors was filed on July 31, 1974. Arguments were heard on the motion and on August 26, 1974, the trial court took the matter under advisement. The motion was overruled on September 23, 1974.
In order to set out the facts of this case, we consider first the contentions of the Appellant regarding the sufficiency of the evidence. It is asserted that the verdict is not supported by sufficient evidence upon all the necessary elements of the crime charged, second degree murder. It is also contended that the verdict is contrary to law because 'the evidence did not negate the elements of self-defense by substantial evidence of probative value.'
It is well-established that this court, in determining the sufficiency of evidence, does not judge the credibility of witnesses or weigh evidence. We look at the evidence most favorable to the State and the reasonable inferences to be drawn from that evidence. A verdict will not be disturbed if there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Young v. State (1975), Ind., 332 N.E.2d 103; Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686; Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d 538.
The evidence at trial revealed that on the early evening of October 5, 1973, the Appellant drove to Boonville, Indiana from her home in Evansville. She had divorced the decedent about a week before, having been separated from him since July of 1973. The Appellant testified that she drove to Boonville to see if she had received any mail there and then decided to see a friend. While in Boonville, the Appellant went to a tavern and had some drinks with friends. While entering the tavern, she noticed that her ex-husband was in another bar next door. During the course of the night, the Appellant asked a friend to go and tell the decedent to join them. She opened her purse and displayed to him an automatic pistol, saying she was 'aimin' to kill the son-of-a-bitch.' The friend did not think that the statement was made seriously.
The decedent subsequently joined the Appellant and her companions. At about 1:00 a.m., October 6, 1973, he left the tavern, following two women with whom he was acquainted. He was talking to one of them when the Appellant also came out of the tavern. An argument ensued between the three persons which developed into a loud exchange of swearing, obscenities and name-calling. The Appellant, standing by her automobile parked nearby, was seen holding a gun in her hand.
The argument ended when the decedent's two female friends left and the decedent returned to the tavern in which he had started his evening. At approximately 1:20 a.m. the Appellant began honking the horn of her car. The decedent was told that 'one of your women is wantin' you out there or honkin for you.' He went outside and was seen getting into the passenger side of the Appellant's automobile. A scuffle then took place in the car and three shots were heard. The Appellant was identified as the woman behind the steering wheel. She admitted shooting the decedent, asserting that it was in self-defense.
The Appellant's sufficiency argument consists largely of a summary of testimony which, it is asserted, 'conclusively shows that said defendant shot the decedent in self-defense.' This asks us to weigh the evidence and judge the credibility of witnesses, which we cannot do. We think that the evidence was sufficient to establish that the Appellant killed the decedent with purpose and malice and thus committed second degree murder. Ind. Code § 35--1--54--1 (Burns 1975). The deliberate use of a deadly weapon in a manner likely to cause death or great bodily harm permits an inference that the defendant was acting with malice and purpose. White v. State (1976), Ind., 349 N.E.2d 156. It is the province of the jury to determine the credibility of witnesses and to determine whether it will believe all, none, or any part of a witness's testimony, and the determination of whether a homicidal act was carried out in self-defense is an ultimate fact to be decided by the jury. Swift v. State (1961), 242 Ind. 87, 176 N.E.2d 117. Put simply, the jury was not required to believe the Appellant's claim of self-defense. We find no error here.
The Appellant also asserts that the trial court erred in overruling motions to strike parts of the indictment and to dismiss the indictment. The indictment in this case read as follows:
The Appellant's motion to strike parts of the indictment sought to strike the following: 'and murder'; 'her former husband'; 'at and against'; 'with one or more of said bullets'; and 'said shooting having occurred in the front seat of a parked automobile which was in the possession of said Jenna Pauline Kelsie and was located at the time of said shooting in a parking place in front of Kenny's Tavern located at 118 South Third Street, Boonville, Warrick County, Indiana.' The trial court subsequently struck from the indictment dictment the words 'her former husband.' The motion was overruled in respect to the other wording challenged.
The Appellant contends that the words so permitted by the trial court are 'surplusage and detrimental to the accused and wholly foreign and prejudicial.' This contention is based upon language contained in Chambers v. State (1937), 212 Ind. 667 at 670, 10 N.E.2d 735 at 736: 'This court on several occasions has held that an indictment or affidavit is not subject to a motion to quash because it contains evidentiary matters; that such matters will be treated as surplusage, and are not prejudicial to the rights of the defendant, unless they are wholly foreign to the subject-matter of the indictment or affidavit.' While the Appellant's contention arises out of a different context in terms of procedure (a 'motion to strike' as opposed to a motion to quash) and in terms of statutory basis (the statutes regarding indictments have been amended since Chambers), we think that the controlling principle here remains. We can find no reversible error if the Appellant was not prejudiced. Cf. Doss v. State (1971), 256 Ind. 174, 267 N.E.2d 385. The language complained of here is not of the character sufficient to render the indictment defective and we can find no error in the overruling of the Appellant's motion to strike.
The Appellant's motion to dismiss the indictment asserted that the alleged crime was not stated with sufficient certainty and that the facts stated in the indictment did not constitute a crime. The crime of second degree murder is defined as '(w)hoever, purposely and maliciously, but without premeditation, kills any human being . . ..' Ind.Code § 35--1--54--1 (Burns 1975). A simple reading of the indictment indicates that the facts were stated with sufficient certainty and constituted a crime under the statutory definition. The Appellant's supporting arguments are equally unpersuasive. It is contended that the indictment failed to allege the exact time of the crime. The indictment need only state the time of the crime 'with sufficient particularity to show that the offense was committed within the statute of limitations.' Ind.Code § 35--3.1--1--2 (Burns 1975). Time of death is not of the essence in a case of murder. Buchanan v. State (1975), Ind.,332 N.E.2d 213. Assertions that language in the indictment was prejudicial merely restates contentions of the Appellant's motion to strike. We find no language so prejudicial that...
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Snyder v. State
......State (1978), Ind., 371 N.E.2d 1309; Buchanan v. State (1975), 263 Ind. 360, 332 N.E.2d 213. In addition, each of the requested instructions was an instruction in excess of the number permitted by CR 8. . Page 809 . No error may be predicated in the refusal to give such instructions. Kelsie v. State (1976), 265 Ind. 363, 354 N.E.2d 219, Cert. den. 429 U.S. 1094, 97 S.Ct. 1108, 51 L.Ed.2d 541; Timm v. State (1976), 265 Ind. 537, 356 N.E.2d 222; Buchanan v. State, supra. . [182 Ind.App. 33] Snyder contends that the trial court erred in admitting hearsay evidence. ......
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......State, (1958) 239 Ind. 174, 154 N.E.2d 714, and Crotty v. State, (1968) 250 Ind. 312, 236 N.E.2d 47, there was an irregularity in the verdict which rendered it questionable as to which of two charged offenses the finding of guilty was to apply. In the recent case of Kelsie v. State, (1976) Ind., 354 N.E.2d 219, one of the errors assigned was that the judge had fixed the sentence rather than the jury, as required by statute. We acknowledged the error but held it to be harmless (Justice DeBruler dissenting) inasmuch as the sentence invoked was the minimum that could ......
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