Kriete v. State

• Decision Date: 18 August 1975
• Docket Number: No. 1273S246,1273S246
• Parties: Lewis F. KRIETE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 209

332 N.E.2d 209

263 Ind. 381

Lewis F. KRIETE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1273S246.

Supreme Court of Indiana.

Aug. 18, 1975.

Harriette Bailey Conn, Public Defender, Darrell F. Ellis, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Appellant Lewis F. Kriete was convicted after trial by jury of second degree murder in the fatal stabbing of Johnny Baker. He was sentenced to life imprisonment. Appellant's belated motion to correct errors was overruled and this appeal follows.

Appellant presents three issues for our consideration:

I. Whether appellant's conviction of second degree murder was erroneous where the evidence shows the homicidal act was done in self-defense.

II. Whether sufficient evidence of malice and purpose was shown to sustain appellant's conviction of second degree murder.

III. Whether the trial court erred in giving Instruction No. 6 over defendant's objection.

I.

The law of self-defense was recently reviewed by this Court in Jennings v. State (1974), Ind., 318 N.E.2d 358. In Jennings we stated:

'A claim of self-defense is predicated upon the right of every citizen to reasonably defend himself against unwarranted attack. Johnson v. State (1971), 256 Ind. 579, 271 N.E.2d 123. The legal effect of a meritoriously asserted claim of self-defense is the justification of an otherwise criminal act. The elements of self-defense, proof of which is incumbent upon one seeking to avoid criminal culpability, have previously been set forth by this Court in King v. State (1968), 249 Ind. 699, 234 N.E.2d 465. According to King:

"Where one has taken the life of another human being, and thereafter contends that he did so in self-defense, he can only be successful in his contention if:

"(1) he acted without fault,

"(2) he was in a place where he had a right to be, and

"(3) he was in real danger of death or great bodily harm, or in such apparent danger as caused him in good faith to fear death or great bodily harm.'

'When a defendant has successfully raised the issue of self-defense, the state may either rebut it directly, Johnson v. State, supra, or rely upon the sufficiency of its evidence in chief. Nelson v. State (1972), 259 Ind. 339, 287 N.E.2d 336. Whether the State has borne its burden of demonstrating that the homicidal act was not carried out in self-defense is a question of fact to be decided by the jury. King v. State, supra; Robinson v. State (1962), 243 Ind. 192, 184 N.E.2d 16.'

318 N.E.2d 358, 359.

Baker was killed while attempting to leave the Rainbow Bar in Peru. Defendant-appellant ws a patron in the tavern. There is no question that it was 'a place where he had a right to be.' To establish that his actions were without fault appellant relies upon testimony presented by the state from which a permissible inference might be drawn that the decedent--and not the appellant--was the aggressor. The state presented other evidence from which exactly the opposite inference could be drawn, i.e., that defendant was the aggressor. Baker's girl friend so testified both on direct and cross examination. When the trier of fact has thus resolved a question of fact against the defendant, we may not reweigh conflicting claims on appeal. The jury had before it evidence of the girl friend's relationship with the decedent and her purported hostility toward the accused, but chose to credit her testimony over that which was equivocal or even conflicting. Such is the jury's prerogative, with which we will not interfere so long as there exists any substantial evidence of probative value from which the jury could have inferred appellant's guilt beyond a reasonable doubt. Jennings v. State, supra. There was sufficient evidence presented from which the jury could conclude that appellant acted as the aggressor and not in defense of himself.

II.

A conviction of second degree murder pursuant to IC 1971, 35--1--54--1, Ind.Ann.Stat. § 10--3404 (Burns Supp.1974), requires proof beyond a reasonable doubt that:

(1) The appellant killed the decedent;

(2) The killing was done purposely and maliciously.

Landreth v. State (1930), 201 Ind. 691, 171 N.E. 192.

Appellant attacks the sufficiency of the evidence of the elements of purpose and malice. Appellant argues that evidence before the jury showing his ingestion of great quantities of intoxicating beverages as a matter of law precluded him from doing the act purposely and maliciously. For this proposition appellant relies upon Eastin v. State (1954), 233 Ind. 101, 117 N.E.2d 124, a prosecution for assault and battery with intent to commit a felony, to-wit, first degree murder. Eastin held that it was reversible error to refuse to give tendered instructions upon intoxication as negating the defendant's ability to form the requisite specific intent. Specific intent is not an element of second degree murder. Purpose and malice may be inferred from the intentional use of a deadly weapon in a manner likely to cause death. Miller v. State (1962), 242 Ind. 678, 181 N.E.2d 633. The hunting knife with which the deceased was gored is a deadly weapon. Appellant asserts that he was only attempting to scare the decedent not kill him. In support of this contention, he argues that the cuts were addressed to portions of the decedent's body which were not the most likely targets for one desirous to committing murder. Specifically, appellant attempts to bring his case within the facts of Miller v. State, supra. In Miller a conviction for second degree murder was...