King v. State, No. 30914

Docket NºNo. 30914
Citation234 N.E.2d 465, 249 Ind. 699
Case DateMarch 07, 1968
CourtSupreme Court of Indiana

Page 465

234 N.E.2d 465
249 Ind. 699
Herbert W. KING, Jr., Appellant,
v.
STATE of Indiana, Appellee.
No. 30914.
Supreme Court of Indiana.
March 7, 1968.

[249 Ind. 701]

Page 466

Robert S. McCain, Fort Wayne, for appellant.

John J. Dillon, Atty. Gen., John F. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

This is an appeal in a criminal action in which the appellant, Herbert W. King, Jr., was charged with, and convicted of, murder in the second degree. Trial was to a jury, and a verdict of guilty was returned. Judgment was entered on the verdict and the appellant was sentenced to a term of life imprisonment.

The appellant waived arraignment and entered a plea of not guilty to the indictment, which, omitting the caption, reads as follows:

'The Grand Jury of the County of Allen, State of Indiana, upon their oaths, present that Herbert W. King, Jr., on the 11th day of June, 1965, in the County of Allen, in the State of Indiana, unlawfully, feloniously, purposely and maliciously, but without premeditation, did kill and murder Gene Carl Faust, a human being, by then and there unlawfully, feloniously, purposely and maliciously, but without premeditation, shooting at and against the said Gene Carl Faust, with a certain .38 caliber revolver, loaded and charged with gun power and bullet and thereby mortally wounded said Gene Carl Faust with said bullet, discharged and shot as aforesaid, from which mortal wound the said Gene Carl Faust then and there died; the Grand Jurors, upon their oaths, as aforesaid, do say and charge that the [249 Ind. 702] said Herbert W. King, Jr., did then and there unlawfully, feloniously, purposely and maliciously, but without premeditation, kill and murder the said Gene Carl Faust, in manner and form aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

The indictment was filed pursuant to the terms of the following statute:

'Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and, on conviction, shall be imprisoned in the state prison during life. (Acts 1905, ch. 169, § 350, p. 584.)' Ind.Ann.Stat. § 10--3404 (1956 Repl.)

Under the issues formed at trial the burden was upon the State of Indiana to prove beyond a reasonable doubt that:

1. Appellant killed the decedent.

2. The killing was done purposely and maliciously.

Page 467

In our determination it is our duty to look to the record of the evidence most favorable to the appellee, State of Indiana. Capps v. State (1967), Ind., 229 N.E.2d 794. The evidence when viewed in this manner may be summarized as follows:

On June 11, 1965 Herman Gayheart went to his brother's apartment, a remodeled single residence, at 924 West Washington Street, Fort Wayne, Indiana. He arrived there at or around noon. Herman Gayheart's brother's apartment is on the lower left side of the building. Mrs. Liz Lyons, on that date lived in the lower right apartment. Appellant, on that date, lived in an upstairs apartment on the left side of the building. There is a common front porch on the building with a small divider running from the steps to the front of the house.

Herman Gayheart had known decedent, Gene Carl Faust, and his family for about three years. During the afternoon on that date, Herman Gayheart and his brother drank five [249 Ind. 703] beers from a six-pack of beer. Liz Lyons drank one can of beer.

About 6 o'clock that evening Herman Gayheart, Liz Lyons, Herman Gayheart's cousin and the Kings were on the front porch. Dorothy Faust, wife of the decedent, and her two children were also on the front porch.

Then Gene Faust drove up in a 1953 Chevrolet and parked it on a side street. He got out of the car and came around to the front of the house. His little boy ran down the steps to greet him and said hello. Then the little boy called him a name--either a 'souse' or a 'louse'. This remark upset decedent and he slapped his son. The child started to bleed.

The decedent then came up to the front porch and he and Liz Lyons had a conversation about discipline of the boy. Some remarks were exchanged by and between Herman Gayheart and the decedent and a fight started. Herman Gayheart, during the course of the fight, hit decedent on the head with the beer bottle. The two men fought for a couple of minutes.

Appellant then came over to where the two men were fighting and told them to break it up. At this point, appellant had a gun in his hand. Herman Gayheart turned decedent loose and backed up and got on the divider. At that time, decedent and appellant started to fight. They were on Liz Lyons' side of the porch. When they were fighting, appellant had his gun in his belt. He was not holding the gun in his hand. Decedent had his arms locked around appellant's legs and he was shaking appellant. Appellant got the gun out from under his belt and said he was going to shoot decedent. Gayheart told appellant not to shoot him and appellant told Gayheart to stay out of it. All witnesses stated they heard a gun fire. When the police arrived, they asked who shot Gene Carl Faust and appellant told them he had done it.

Harman Gayheart specifically testified as follows:

'A. They struggled around there two or three minutes fighting, and then Gene has his arms locked around Mr. King's legs there and his head down there at his [249 Ind. 704] knees and he was shaking him and Mr. King was getting his gun out from under his belt. He had stuck it under his pants right there and he was getting it back out and said he was going to shoot him and he got up and I said, 'Don't shoot him', and he walked over towards me and he put the gun on me then.

Q. Did he take the gun out of his belt?

A. He walked out just behind me when he said he was going to shoot him.

Q. Said he was going to shoot who?

A. Gene.'

The witness Liz Lyons testified that the decedent and Gayheart had stopped fighting when the appellant appeared with the

Page 468

gun and that the deceased was trying to get in the door when the appellant shot him.

Dorothy Mae Faust testified she saw the decedent with a gun in his hand when he came out the middle door and walked over to the middle ledge.

And appellant aimed the gun, point blank, at Gayheart's face when Gayheart turned around and appellant said 'Quit your fighting or I'll blow your brains out'.

In response to a question 'Why did you shoot this man at the time you did?' Appellant answered: 'Well, more or less...

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43 practice notes
  • Blackburn v. State, No. 370S43
    • United States
    • Indiana Supreme Court of Indiana
    • January 24, 1973
    ...and purpose, a court of review may not substitute its view of what the evidence establishes for that of the jury. King v. State (1968), 249 Ind. 699, 234 N.E.2d 465. The appellant contends that there were one or more theories derived from the evidence which were consistent with the defendan......
  • White v. State, No. 867S74
    • United States
    • Indiana Supreme Court of Indiana
    • August 22, 1968
    ...18. See also: Easton v. State (1967), Ind., 228 N.E.2d 6; Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641; King v. State (1968), Ind., 234 N.E.2d 465. [251 Ind. 111] A careful reading of the evidence adduced by the State and the appellant conclusively shows that a shot or shots were firs......
  • Nuss v. State, No. 1--874A123
    • United States
    • Indiana Court of Appeals of Indiana
    • June 5, 1975
    ...The guidelines for this court's review of a claim of self defense, as established by the Indiana Supreme Court in King v. State (1968), 249 Ind. 699, 234 N.E.2d 465, are as 'Where one has taken the life of another human being, and thereafter contends that he did so in self-defense, he can o......
  • Kelsie v. State, No. 1274S241
    • United States
    • Indiana Supreme Court of Indiana
    • September 21, 1976
    ...or was not in real danger of death or great bodily harm or could not have perceived herself as being in such danger. King v. State (1968), 249 Ind. 699, 234 N.E.2d 465, 468. The jury did not believe appellant's self-defense claim. The evidence and inferences therefrom would have permitted t......
  • Request a trial to view additional results
43 cases
  • Blackburn v. State, No. 370S43
    • United States
    • Indiana Supreme Court of Indiana
    • January 24, 1973
    ...and purpose, a court of review may not substitute its view of what the evidence establishes for that of the jury. King v. State (1968), 249 Ind. 699, 234 N.E.2d 465. The appellant contends that there were one or more theories derived from the evidence which were consistent with the defendan......
  • White v. State, No. 867S74
    • United States
    • Indiana Supreme Court of Indiana
    • August 22, 1968
    ...18. See also: Easton v. State (1967), Ind., 228 N.E.2d 6; Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641; King v. State (1968), Ind., 234 N.E.2d 465. [251 Ind. 111] A careful reading of the evidence adduced by the State and the appellant conclusively shows that a shot or shots were firs......
  • Nuss v. State, No. 1--874A123
    • United States
    • Indiana Court of Appeals of Indiana
    • June 5, 1975
    ...The guidelines for this court's review of a claim of self defense, as established by the Indiana Supreme Court in King v. State (1968), 249 Ind. 699, 234 N.E.2d 465, are as 'Where one has taken the life of another human being, and thereafter contends that he did so in self-defense, he can o......
  • Kelsie v. State, No. 1274S241
    • United States
    • Indiana Supreme Court of Indiana
    • September 21, 1976
    ...or was not in real danger of death or great bodily harm or could not have perceived herself as being in such danger. King v. State (1968), 249 Ind. 699, 234 N.E.2d 465, 468. The jury did not believe appellant's self-defense claim. The evidence and inferences therefrom would have permitted t......
  • Request a trial to view additional results

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