Landreth. v. State

• Citation: 201 Ind. 691,171 N.E. 192
• Decision Date: 22 April 1930
• Docket Number: No. 25619.,25619.
• Parties: LANDRETH. v. STATE.
• Court: Supreme Court of Indiana

201 Ind. 691

171 N.E. 192

LANDRETH.

v.STATE.

No. 25619.

Supreme Court of Indiana.

April 22, 1930.

Appeal from Lawrence Circuit Court; James A. Cox, Judge.

John Landreth was convicted of second-degree murder, and he appeals.

Affirmed.R. L. Mellen and Boruff & Boruff, all of Bedford, for appellant.

Arthur L. Gilliom, Atty. Gen., and Donald R. Mote, Deputy Atty. Gen., for the State.

TRAVIS, C. J.

This is a prosecution for murder, preferred by an indictment, which alleged that appellant did on the 29th day of November, 1924, unlawfully, feloniously, purposely, and with premeditated malice kill and murder Roswell Shields, which crime is defined by section 347 of chapter 169, page 584, Acts 1905, section 2412, Burns' Ann. St. 1926.

The evidence presented by the briefs, which supports the verdict of guilty, may be narrated as follows:

Landreth, the appellant, and Shields, the victim of the homicide, resided on their farms located one-half mile and a mile and a quarter south and southeast, respectively, from the village of Georgia in Lawrence county. They had been friends for many years. On November 2, 1924, between 7 and 8 o'clock in the morning, appellant went to the home of Shields in an automobile, and from his automobile called Shields to come out to talk with him in the highway in front of the house. Shields called back to the house for his son Clovis, and Clovis responded by going to the door of the house where, as he testified, he heard the conversation between Landreth and his father. In the conversation Landreth told Shields that he would “kill both the dog and him too,” to which Shields replied that he would not. In referring to this conversation, Landreth testified, in his own behalf, that he told Shields that he would shoot Shields' dogs if he caught them after his sheep. The two men did not meet again until the fatal day of the homicide, November 29, 1924, between 5 and 6 o'clock in the evening. That evening Shields was sitting in Elsworth Cox's general store at Georgia, near the stove talking with several others, who were witnesses in the case, at which time Landreth came to the store with his son-in-law. The store was twenty-two feet wide and sixty feet long, the front of which was glass, except the double door in the center. A double aisle ran from the door back to the stove. The division was made by a stock of goods. Landreth entered the store, which faced west, and bought some tobacco and coffee in the north aisle of the passageway. While he was making his purchase Shields left the store by the front door, going on the south aisle. Landreth, without taking his purchases with him, went back to the stove to his son-in-law, and asked him if he was ready to go. He and the son-in-law started for the west exist and Landreth went out, but the son-in-law did not. As he went out, the door was left half open, and immediately after his leaving the store a shot was heard by all within hearing distance. No other noise or sounds were heard. Within a few seconds after the shot was fired, Landreth re-entered the store through the open doorway and said: “He hit me, what made him hit me. Oh, I hate him.” Within a very short time, without having spoken to any one or any one speaking to him, Landreth left the store and departed. The people in the store went outside and found Shields lying at the south end of the porch, which extended across the front of the store, with his head and shoulders hanging over on the first step from the porch. His body was carried into the store. The coroner, who was notified, testified that death was caused by a bullet wound three and one-fourth inches left of the nipple on the left side ranging downward; that the bullet was a leaden bullet of 38 caliber; and that he (the coroner) went to the home of Landreth and obtained from Landreth's wife a 38-caliber revolver which contained four loaded cartridges and one empty one. While making the examination of Shields' body, he examined his clothing for weapons and found “only a pocketknife.” Dr. Morrell Simpson testified that he made an autopsy; that death was caused by a gunshot wound in the breast, from a bullet which entered the left side between the fifth and sixth ribs near the nipple and ranged downward, severed the pulmonary artery, passed through the lungs; and that there were no powder burns on the body. Edward Haverly testified that he was the undertaker who took care of Shields' body at the store at about 8 o'clock on the day of the homicide, and that death was due to a bullet wound which entered Shields' body four inches to the left of the left nipple, and that he cut the bullet out of the body at a point two and one-half inches to the right of the spinal column above the kidney while the body was yet warm, and that he removed the body to the home of Shields.

Not much of this evidence was disputed by the evidence introduced on behalf of Landreth. Landreth testified in his own behalf that he fired the shot. The sole defense in this case is self-defense on the part of Landreth from the attack made upon him by Shields when Landreth left the store. Landreth testified that when he left the store it was dark outside, so dark that he could not recognize a certain person, but could see an object, and that he was hit violently in the pit of the stomach and knocked down, and that as he arose he was struck violently again on the side of the head and knocked down; that he then drew the revolver with which he fired the shot at the person who had hit him.

The issue was made by the plea of not guilty. The verdict of the jury was that Landreth was guilty of murder in the second degree, and that he be imprisoned in the state prison during life. The court rendered judgment upon the verdict that Landreth be imprisoned during life in the Indiana State Prison.

The appellant appealed from the judgment and alleges that the court committed error in overruling his motion for a new trial. The specific errors presented upon appeal are that (1) the verdict is not sustained by sufficient evidence, and (2) is contrary to law, (3) a new trial should have been granted because of newly discovered evidence, and (4) instructions numbered 19, 20, and 21 should not have been given.

[1] The necessary elements of the crime of murder in the second degree to be considered here are that appellant “purposely” killed the deceased, and that he did so purposely kill him “maliciously.” The venue and the corpus delicti are neither challenged nor disputed.

[2][3][4][5][6][7] Appellant sought by his evidence which related to self-defense to overcome the evidence by the state that the crime was committed purposely and maliciously. By the evidence of appellant he drew a revolver, which is a deadly weapon, and shot the decedent. It was for the jury to find as an ultimate fact necessary to be proved that appellant purposely killed the decedent. The word “purposely” used in the statute predicated intent when used in the indictment. Fahnestock v. State (1864) 23 Ind. 231, 263;Murphy v. State, 31 Ind. 511. Such intent or purpose may be inferred from circumstances in evidence, and the use of a deadly weapon is sufficient under the circumstances in this case to support an inference of intent to murder. Walker v. State (1894) 136 Ind. 663, 669, 36 N. E. 356. The element of malice necessary to sustain a conviction in this case is for the jury to determine. Dundovich v. State, 190 Ind. 600, 131 N. E. 377. Malice may be inferred from the use of a deadly weapon, which use caused the death charged in the indictment. Dundovich v. State, supra; Bridgewater v. State (1899) 153 Ind. 560, 563, 55 N. E. 737, 13 Am. Cr. Rep. 270; Murphy v. State, supra.

[8][9][10] The defendant in a trial under a charge for murder may introduce evidence to rebut the inference of malice, and such evidence may be in proof of self-defense. But the defense of self-defense is an ultimate fact solely for the determination of the jury from the evidence. The court is of the opinion that the evidence in this case is sufficient to support the inference, necessarily found by the jury by its verdict, that the use of the deadly weapon by the appellant was purposeful and malicious, under which finding here it necessarily follows that it must be further found upon appeal that the verdict of the jury is sustained by sufficient evidence and that it is not contrary to law, to the extent of the attack upon the verdict here that the proof of self-defense was sufficient to overcome the inference that the killing was done purposely and maliciously.

[11] The alleged cause for a new trial based upon newly discovered evidence is met by the appellee in its brief by the assertion that the newly discovered evidence as portrayed by affidavits in support of the motion for a new trial of this cause, if admitted in evidence, would be but cumulative. The newly discovered evidence would be solely in proof of the fact of self-defense. It would do nothing more than add weight to the evidence introduced at the trial in support of self-defense. The appellant does not challenge this assertion in appellee's brief by a reply brief. And from a consideration of the evidence in this case, with the statement of the evidence alleged to be newly discovered, we cannot say that the purported newly discovered evidence, being cumulative, is such that it may be said upon appeal that the trial judge violatedhis judicial discretion in overruling the motion for a new trial upon this cause.

[12] Instruction 19, the giving of which is alleged to be error, is one over which there has been much judicial controversy. It follows totidem verbis: “You, gentlemen, in this case are the judges of law, as well as of the facts. You can take the law as given and explained to you by the court; but if you see fit, you have the legal and constitutional right to reject the same and construe it for yourselves. Notwithstanding you have the legal right to disagree with the...