Livingston v. State
| Decision Date | 17 January 1972 |
| Docket Number | No. 570S110,570S110 |
| Parties | Herman LIVINGSTON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Palmer K. Ward, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen. of Indiana, Robert A. Smith, Deputy Atty. Gen. of Indiana, for appellee.
Defendant (Appellant) was charged in two counts, the first alleging first degree murder and the second charging the killing of decedent while in perpetration of a robbery. He was found guilty of the lesser included offense of second degree murder upon the first count and sentenced to life imprisonment. No verdict was returned upon the second count. The error assigned is addressed to the sufficiency of the evidence.
Decedent was delivering fuel oil to the home of the witness, Mathis, a nineteen year old boy. Mathis first met him near the front of the house and directed him to the oil tank at the side of the house and then went inside. He was using the telephone when he heard a disturbance in the vicinity of the oil tank, a sound like a firecracker and then a cry of 'Help.' He went outside and saw the decedent lying on the ground. The defendant was bending over him. Mathis recognized the defendant and called him by name, whereupon the defendant pointed a gun at him and told him not to say his name again. Mathis told Defendant that he had better leave, and he did so. As Defendant fled down a nearby alley, Mathis followed to the alley and looked in the direction of Defendant's flight. Defendant responded with a gun shot. Mathis and his father carried decedent into the house and called the police. The police came, rendered first aid to the decedent's head wounds, that apparently came from having been beaten, and then called an ambulance. The ambulance took the decedent to the hospital, where it was learned that he had also been shot in the head. Decedent died in the hospital approximately seven weeks later from pneumonia and kidney infection resulting from the gunshot wound and without having regained consciousness. The only information that the police had been able to obtain from the decedent before he lapsed into unconsciousness was his name.
While the police were in the Mathis home, Mathis lied to them about the defendant and gave them misinformation concerning his appearance. He told them the same story at police headquarters the following morning, but just after leaving the building, he returned, told what really had happened and informed upon the defendant. At the trial, the only evidence implicating the defendant came from Mathis. He testified that he gave false information to the police on the night of the incident because, on that occasion, the police were talking to the decedent who gave them the defendant's description, and he was afraid that the defendant would think that he had informed. Mathis' testimony that the decedent had given the police the defendant's description does not conform to the police testimony that they only obtained his name from him; and it is the defendant's position that in view of this and Mathis' having told conflicting stories, his testimony becomes incredible and unbelievable and will not support the conviction.
When the sufficiency of the evidence is raised as an issue on appeal, this Court will consider only that evidence most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. Gann v. State (1971), Ind., 269 N.E.2d 381; Asher v. State (1969), Ind., 244 N.E.2d 89.
The conviction will be affirmed if, from that viewpoint, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Taylor v. State (1971), Ind., 267 N.E.2d 383; Boss v. State (1970), Ind., 263 N.E.2d 546; Brown v. State (1970), Ind., 263 N.E.2d 534...
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