Leaver v. State, 31159

Citation237 N.E.2d 368,250 Ind. 523
Decision Date12 June 1968
Docket NumberNo. 31159,31159
PartiesFrank J. LEAVER, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Daniel B. Burke, Jr., New Albany, for appellant.

John J. Dillon, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.

PER CURIAM.

Appellant was convicted of murder in the first degree after a trial by jury in the Floyd Circuit Court and was sentenced to be imprisoned in the Indiana State Prison for and during his natural life.

The appellant, in his assignment of errors, urged that the trial court erred in overruling his motion for a new trial. The argument was addressed to three basic issues. First, the appellant claimed the lower court erred in overruling his motion in admitting into evidence certain photographs made of the accused; second, the lower court erred in admitting into evidence a letter of communication allegedly written by the appellant; lastly, the appellant claims the verdict was contrary to law and not sustained by sufficient evidence.

The facts, by way of summary are these; a young lady, Anita Christine Barmore, hereinafter referred to as the deceased, was found dead in the early morning of November 8, 1962 on the edge of a field on a farm located on Route 2, Charlestown, in the State of Indiana.

There was testimony by a witness that on November 7, 1962 between 9:30 and 10:00 P.M. the deceased was seen in a car with a man who resembled the defendant. There was further testimony by another witness that at 10:00 P.M. on the evening of November 7, 1962 the appellant was seen driving a car with the deceased as a passenger. The witness stated that she clearly saw appellant's face which was free of scratch marks. The same witness testified that on the next morning, November 8, 1962, while serving doughnuts and coffee to the appellant at the service station where he was employed, the witness observed scratch marks on the appellant's face, and that he was observed to be nervous. The witness further testified that, at that time, the appellant stated that he had blood on his pants and asked the witness to get the blood out of them. The witness further testified that when she inquired what had happened, she was told to shut up, and that she was threatened and her children were threatened.

There was further testimony that the tire treads of appellant's car and plaster casts made of tire prints at the scene of the murder were identical in composition. The witness testified this was an unusual type of tire tread.

An autopsy on the body of Anita Christine Barmore, the deceased, was conducted at 10:00 P.M. on November 8, 1962. The pathologist testified that she had been dead at least eight (8) hours, and probably between eight (8) and thirty-six (36) hours. The pathologist testified the left breast had been amputated, most of the pubis, the skin of the pubis and the vulva had been excised. The pathologist further testified that the deceased died as the result of strangulation. A police officer, on November 10, 1962, after serving appellant with a search warrant for his automobile and apartment, testified that there were severe scratch marks on both sides of appellant's face. A picture of the deceased at that time was shown to the appellant who represented that he did not know her and never saw her before. There was testimony that the deceased had been seen with appellant in the service station where he worked and that the deceased had brought the appellant sandwiches at the said station. It was appellant's contention that the scratches on his face came as the result of a car accident on November 6, 1962 and that his face scratches resulted from being thrown forward with his face striking the steering wheel and window of his car. There was testimony that the type of scratches appellant described could not be received by the type of accident claimed by the appellant.

There was testimony that on November 10, 1962 when appellant's car was examined in a parking lot, fecal matter on the rear floor and the rear door of the car was found, as well as on the right front floor of the car. There was testimony that the legature marks on the neck of the deceased were similar to the imprint of the piece of plastic covered twine found in the trunk of appellant's car. There was testimony that the clothing of the deceased contained fecal matter and that the hair found in appellant's car was comparable in structure with the hair of the deceased. The nails of the deceased were broken on the right ring finger, the right middle finger, the left middle finger and the left ring finger. Scrapings contained some blood and tissue. Appellant was found with severe scratch marks on his face on the morning after the murder and these scratches were not there the night before the murder.

There was testimony that a while bath towel bearing the imprint 'Hospital Property' was found at the scene of the murder. There was further testimony that appellant had white towels in his car with the imprint 'Hospital' on them. There was further testimony the towel found at the scene of the murder had blood stains that were the type of blood of the deceased. There was testimony that appellant wore a black rubberized raincoat, and a black raincoat was found at the scene of the murder with blood on it of the same type as the deceased.

There was testimony that part of deceased's body had been amputated and there was further testimony that appellant kept a knife in his car. There was offered as an exhibit a communication written by the appellant to a female prisoner in which appellant stated that he was guilty.

The evidence produced by the state is of such sufficiency to comply with the general rule of this state that a conviction will be sustained if there is evidence of the facts essential to support the judgment; Mathews v. State (1967), Ind., 228 N.E.2d 1. On appeal this court will consider only the evidence most favorable to the state together with all the reasonable inferences to be drawn therefrom. Fisher v. State (1966), Ind., 219 N.E.2d 818; Donaldson v. State (1952) 231 Ind. 434, 108 N.E.2d 888. The Supreme Court on appeal will not weigh the evidence or the credibility of witnesses; ...

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