Liston v. State, 368S50

• Decision Date: 24 September 1969
• Docket Number: No. 368S50,368S50
• Citation: 250 N.E.2d 739,252 Ind. 502,18 Ind.Dec. 486
• Parties: Edward E. LISTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 739

250 N.E.2d 739

252 Ind. 502

Edward E. LISTON, Appellant, v. STATE of Indiana, Appellee.

No. 368S50.

Supreme Court of Indiana.

Sept. 24, 1969.

Bruce E. Bloom, Bruce R. Snyder, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

Appellant was charged with assault and battery with intent to kill and attempted escape. Upon a plea of not guilty to both counts, appellant was tried without a jury and found guilty of each crime.

A motion for new trial was filed in both cases and appellant obtained permission from this court to consolidate them on appeal.

A review of the evidence most favorable to the state follows: on September 3, 1967, appellant was a prisoner in C block of the Allen County jail. C block contained about fourteen (14) prisoners. To get to the block one would first have to open a steel outside door, walk along a hallway of about fifty (50) or sixty (60) feet to an electric door, which opened into the cell block. About fourteen (14) prisoners were housed in C block on September 3, 1967 in cells each of which contained four (4) bunks. In addition to the cells, C block contained a day room where the prisoners ate their meals and carried on various recreational activities.

On the above date, appellant and another prisoner named Chapman were found in one of the cells beating a third prisoner. At the time, most of the other prisoners were in the day room, the door to which was open, allowing free passage from that area to the cells. As soon as the beating was discovered, deputies came into the cell block and removed the beaten prisoner. Soon thereafter they returned and told appellant to come out as they were going to put him in the security ward. Appellant responded that he wasn't going anywhere and that if the deputies wanted him they were going to have to come and get him. During this time appellant and three other prisoners were standing in the hallway by the day room. The deputies were also in the hallway between the steel outside door and the electric door. The other prisoners were still in the day room.

At this point the evidence is somewhat conflicting. However it appears that one of the deputies made a comment about getting the dogs and they left the block area. After the deputies left, several of the prisoners began building a barricade in the hallway out of mattresses. One of the prisoners began breaking out the glass in the cell windows with a piece of steel strapping pulled off from a housing unit contained in the cell block. Another prisoner proceeded to break up the sinks and toilets which were found in each cell. There is no evidence that appellant participated in this destruction. Somehow the deputies succeeded in locking the day room door thereby separating the four prisoners in the hallway from the rest in the day room.

When the deputies returned with a dog and attempted to enter the block area, they were greeted with a barrage of porcelain chunks obtained from the broken sinks and toilets. While the deputies had been gone the four prisoners in the hallway had succeeded in unlocking the day room door thus allowing those prisoners to also participate in the activities.

Various threats were made by the prisoners, including appellant, to the effect that they would kill the first deputy to come into the cell block. These and other threats were repeated throughout the disturbance.

The deputies attempted to advance into the block area with the dog, but the dog became frightened and had to be taken out. Throughout this time the prisoners continued to throw the porcelain, several pieces of which struck the deputies who were now wearing protective helmets.

The jail officials next attempted to use a fire hose with the idea of forcing the prisoners up against a wall, making it possible for the deputies to take them out one by one. However this proved ineffective and so it was decided that tear gas would have to be used if jail security was to be maintained and the disturbance quelled. Accordingly, tear gas was shot into the block area and shortly afterwards the prisoners came out, one by one and were taken down a stairway to the chapel where they were kept until further arrangements could be made.

Sometime during the disturbance, Officer Dullaghan was inside the block area and was struck on the helmet and on the hand by a piece of porcelain which, by his own testimony, he saw appellant throw. The injury to his hand required four stitches and a scar remains to this day.

In light of the foregoing evidence, we shall first discuss appellant's conviction of assault and battery with intent to kill. Ind.Ann.Stat. § 10--401a (1969 Supp.) defines the offense as follows:

'Whoever with intent to kill another human being perpetrates an assault or assault and battery upon the other human being, shall upon conviction, be imprisoned in the state prison for not less than two (2) nor more than fourteen (14) years.'

The phrase 'assault and battery' is defined in Indiana in the following terms:

'Whoever in a rude, insolent or angry manner, unlawfully touches another, is guilty of an assault and battery * * *.' Ind.Ann.Stat. § 10--403 (1969 Supp.)

It is quite apparent therefore that to sustain the conviction of assault and battery with intent to kill there must be substantial evidence of probative value from which it could be concluded that (1) the appellant unlawfully touched Officer Dullaghan in a rude, insolent or angry manner, and (2) appellant engaged in such unlawful conduct with intent to kill Officer Dullaghan. Durham v. State (1968), Ind., 238 N.E.2d 9.

In determining whether there is sufficient evidence to uphold the conviction, this court has said many times that it will not weigh the evidence or determine the credibility of the witnesses. Also a verdict on appeal will not be disturbed if there is substantial evidence of probative value sufficient to establish every material element of the crime. Only that evidence most favorable to the state and all reasonable inferences to be drawn therefrom will be considered on appeal.

When looking to the evidence most favorable to the state, it was established by the testimony of Officer Dullaghan that appellant struck the officer with a piece of porcelain. The exact piece was not identified at trial but the surface area of representative pieces measured several square inches. From the foregoing it would appear that the first element as set out above has been clearly established i.e. the unlawful touching in a rude, insolent or angry manner, and appellant does not challenge this fact. Appellant does contend, however that the state failed to prove the specific intent to kill Officer Dullaghan as required by the statute.

In Petillo v. State (1950), 228 Ind. 97, 101, 89 N.E.2d 623, 624, where defendant was charged with the same crime as here, this court said:

'* * * that the intent was a question for the court, the proof of which rested upon the State; and in determining the question it was the duty of court to consider all of the facts and circumstances disclosed by the evidence bearing upon it. The felonious intent in such a case might have been shown by direct evidence, such as lying in wait for an opportunity, with a deadly weapon; and, in the absence of any such direct proof, if the assault and battery was with a deadly weapon, used in such a manner as to be reasonably calculated to cause death, the intent to kill might be inferred from the act itself.' (our emphasis)

The question to be answered is whether the porcelain missile thrown by the appellant could have caused a fatal injury. Representative pieces of porcelain introduced by the state measured: (1) one and one-half by three and one-fourth by six inches (1 1/2 3 1/4 6 ); (2) three inches by four inches (3 4 ); and (3) five by three and three-fourths by three by two and one-half by two and three-fourths inches (5 3 3/4 3 2 1/2 2 3/4 ). Although these pieces were not directly connected with the appellant, they were accepted as being representative of all the porcelain thrown by the prisoners, appellant included.

In Kidwell v. State (1967), Ind., 230 N.E.2d 590, 592 we stated:

'Whether a particular object is or is not a dangerous or deadly weapon depends in many cases upon the manner in which it is used.'

It seems fairly obvious to this court that pieces of porcelain of the size introduced into evidence by the state, which would of necessity have rough and jagged edges, having been obtained from broken sinks and toilets, constitute a deadly weapon when thrown at another human being at close range, to-wit: ten to fifteen feet as was here done. The fact that the actual injury caused was relatively slight is not controlling. Instead of cutting a finger the piece could have struck him in such a place as to cause serious injury or death. In fact one piece did hit Officer Dullaghan on the helmet and, had it not been for the helmet, a serious injury could have resulted. However we need not speculate as to what might have happened. It is enough to say that the porcelain constituted a deadly weapon when thrown at such close range, the pieces being of considerable size.

As has been stated, the use of a deadly instrument used in a manner reasonably calculated to cause death is...