Kestler v. State

• Citation: 85 N.E.2d 76,227 Ind. 274
• Decision Date: 06 April 1949
• Docket Number: 28346.
• Parties: KESTLER v. STATE.
• Court: Supreme Court of Indiana

85 N.E.2d 76

227 Ind. 274

KESTLER v. STATE.

No. 28346.

Supreme Court of Indiana

April 6, 1949

Appeal from Clark Circuit Court; James L. Bottorff Judge.

Prentice & Prentice, of Jeffersonville, and W. Clarke Otte, and William S. Hamilton, both of Louisville, Ky., for appellant.

Cleon H. Foust, Atty. Gen., Frank E. Coughlin, First Deputy Atty Gen. and Merl M. Wall, Deputy Atty. Gen., for appellee.

STARR Chief Justice.

The appellant was convicted of murder in the first degree and sentenced to the Indiana State Prison for and during his natural life. From that judgment he has appealed to this court, contending that the verdict of the jury is not sustained by sufficient evidence and that it is contrary to law.

The appellant's wife was shot and killed on the 15th day of November, 1946. The claim is here made that the evidence uncontradicted, shows that the death was accidental.

The evidence placed before the jury showed the appellant, accompanied by his brother, going home by taxi on the evening of the killing; that he was under the influence of intoxicants and that the odor of strong drink was apparent; that he used an endearing term with reference to his wife while placing his arm around her and that he went with his wife to their bedroom; that his brother went to the basement to be with the two children of the appellant; that the brother, for some reason, later went up the steps from the basement to the doorway of the bedroom; that when he was at the top of the steps he could look into the bedroom and see his brother, the appellant, but could not see his brother's wife; that as he reached that point he heard his brother say 'Mabel watch that gun, its loaded'; that when he was at the top of the steps and heard his brother say 'Mabel watch that gun, its loaded' he did not hear Mabel say anything; that the appellant was intoxicated, not normal, or natural, and that he said many times 'why did I do it, God damn it, why did I do it, I don't know why I did it,' or like expressions; that the appellant admitted to the sheriff that he had shot his wife; and that no claim of an accidental homicide was made at or near the time of the shooting. The evidence also showed that the automatic revolver, from which the fatal shot was fired, had two safety devices and a trigger; that the gun had an automatic grip safety at the rear of the butt or grip of the gun, and also a manually operated safety catch, both of which had to be on release before the gun could be fired by the pulling of the trigger.

From the above evidence and from the description of the room, the location of the furniture, the position of the parties, and the location of the body after the shooting, the jury had sufficient basis on which to base its conclusion. It is true the defense offered evidence that the shooting was an accident, but the jury evidently did not believe the story related by the appellant. It was claimed by the appellant that his wife had said 'here you take it' while extending the gun to him and that at the time he and his wife were very close to each other. By inference the first claim was disputed by the testimony of appellant's brother when he stated that he had heard his brother say 'Mabel watch that gun, its loaded' but did not hear Mabel say anything, and the second claim was likewise disputed by inference when the brother stated that he could not see the appellant's wife although he could see the appellant at about the moment of the shooting. The jury saw the weapon from which the shot was fired and had explained to it the purpose and use of the safety feature on the grip or butt thereof, together with the operation of the manual safety catch.

The credibility of the witnesses and the weight to be given their testimony was for the jury. Ross v. State, 1933, 204 Ind. 281, 289, 290, 182 N.E. 865, 868. The jury had the right to weigh the evidence and to believe or disbelieve any given item of evidence. The jurors watched the witnesses on the witness stand, they observed their demeanor, and their candor or lack of it. This court is in a different position and must get its knowledge of the cause from the cold, unfeeling record.

The rules applicable to the trial court and those which apply in this court are not the same. We do not have the same opportunity to observe the witnesses. The correct rules and their differences are stated in the late case of McAdams v. State, 1948, Ind.Sup., 81 N.E.2d 671. In the case of Brown v. State, 1941, 219 Ind. 21, 22, 23, 36 N.E.2d 759, 760, this court had before it a case where the evidence was largely circumstantial and, in disposing of it, said:

'The appellant first undertakes to invoke the rule that circumstantial evidence, in order to sustain a conviction, must be of a conclusive character and must exclude every reasonable hypothesis of innocence of the accused. The rule is sound, but it is for the guidance of trial courts and does not apply to the reviewing tribunal. Where circumstantial evidence is of a character that two conflicting inferences may reasonably be drawn therefrom, one tending to prove or favorable to the guilt of the accused and the other favorable to his innocence, it is not within the province of this court to determine which inference ought to control. Rosenberg v. State, 1922, 192 Ind. 485, 134 N.E. 856, 137 N.E. 53. If, in a case where the evidence is conflicting, the trial court finds against the weight thereof, this constitutes an error of fact and not of law, and it is the duty of the trial court to correct such error by granting a new trial. The rule that this court will not weigh the evidence applies whether it is direct or circumstantial. Howard v. State, 1921, 191 Ind. 232, 131 N.E. 403. It is only where there is no evidence from which the trial judge or jury, as the case may be, may reasonably have drawn an inference of guilt that the decision or verdict will be disturbed on appeal. Scharillo v. State, 1934, 207 Ind. 22, 191 N.E. 76, 77.'

Since inferences to be drawn from the evidence lie within the province of the triers of the facts, Cazak v. State, 1925, 196 Ind. 63, 147 N.E. 138, this court must accept as true such evidence and the inferences which may reasonably be drawn therefrom as tend to support and sustain the verdict. Tutsbree v. State, 1925, 195 Ind. 581, 145 N.E. 490.

The jury could have inferred that the appellant and his wife were not close together at the time of the shooting and the jury likewise could have inferred that the victim did not ask the appellant to take the gun. The appellant's brother testified he did not hear his sister-in-law say anything although he did hear the words uttered by the appellant. The evidence was not such as to force but one inference or conclusion. Conflicting inferences might reasonably be drawn therefrom. Taking into consideration all the evidence given in this cause, we find that there was evidence from which the guilt of the appellant could be inferred.

Appellant stresses the prior friendly relationship between him and the deceased. Granting, for the purpose of this opinion, that there is no evidence that the killing was done with premeditated malice and that the evidence only authorized the jury to find appellant guilty of murder in the second degree, the error was harmless because the punishment of imprisonment for life assessed by the jury is the same as that provided by statute for murder in the second degree. McPherson v. State, 1912, 178 Ind. 583, 99 N.E. 984.

The judgment of the lower court is affirmed.

GILKISON, and EMMERT, JJ., dissent.

EMMERT Judge (dissenting).

At the close of the first argument in this appeal I was of the opinion that this conviction should be affirmed. However after I had examined and studied the entire record in this case, which consists of some 250 pages, I became convinced that a miscarriage of justice had occurred, and that the verdict was both not sustained by sufficient evidence and contrary to law. Upon a reargument of this case, in which the prosecuting attorney who had tried the case participated, the State presented no facts or law which would authorize an affirmance of this conviction. After a careful examination of the entire record the second time, as well as parts of it several additional times, I am of the firm belief that the affirmance of this conviction on such evidence as we have in the record puts in jeopardy every user of firearms who may accidentally cause the death of another, by requiring him to sustain the burden of proving the death was accidental, and thus make him subject to conviction for first degree murder, with either a life or death sentence imposed. It has never been the law in this state that an accused has the burden of proving his innocence to be entitled to an acquittal. The burden to prove the material allegation of any criminal offense beyond a reasonable doubt rests upon the State throughout the trial, yet under the facts involved in this unfortunate accident the majority opinion has placed such burden upon the appellant.

It is true that in every criminal appeal we are dealing with a cold record, but the fact that we do not see the witnesses face to face and observe their manner and conduct on the witness stand, does not serve to place in the record evidence which is nonexistent, nor should it cause us to ignore uncontradicted evidence introduced by the State which is only consistent with the hypothesis that the accused is innocent.

To sustain this conviction, there must have been evidence presented to the jury which would justify it in finding the appellant did 'purposely and with premeditated malice' slay his wife as charged in the indictment. ^[1] The appellant made no statements that he did the act purposely or with...