Madison v. State, 29188

• Decision Date: 04 November 1955
• Docket Number: No. 29188,29188
• Citation: 234 Ind. 517,130 N.E.2d 35
• Parties: James B. MADISON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 35

130 N.E.2d 35

234 Ind. 517

James B. MADISON, Appellant, v. STATE of Indiana, Appellee.

No. 29188.

Supreme Court of Indiana.

Nov. 4, 1955.

Wilbur F. Dassel, Evansville, Raymond Pace Alexander, Philadelphia, Pa., of counsel. Robert J. Hayes, Evansville, of counsel in Vanderburgh Circuit Court, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Deputy Atty. Gen., for appellee.

EMMERT, Chief Justice.

This is an appeal from a judgment sentencing appellant to imprisonment for life, entered on a verdict finding him guilty of murder in the second degree under an indictment charging murder in the first degree The assignment of errors charges the trial court erred (1) in overruling appellant's motion to quash the indictment, and (2) in overruling appellant's motion for a new trial. The motion for a new trial, among other things, alleged the verdict was not sustained by sufficient evidence, and was contrary to law.

The indictment was returned by the Grand Jury of Vanderburgh County on October 2, 1953, and is as follows:

'The Grand Jurors for the County of Vanderburgh and State of Indiana, upon their Oaths, present and charge that James B. Madison on or about the 1st day of August A. D., 1953 at said County unlawfully, feloniously, purposely and with premediated malice, did kill and murder one Jesse Clarence Trigg by then and there unlawfully, feloniously, purposely and with premeditated malice wounding the said Jesse Clarence Trigg with a certain deadly weapon called a hand grenade, then and there loaded with nitroglycerin, the said hand grenade being thrown by the said James B. Madison in the direction and in the vicinity of the said Jesse Clarence Trigg, after the trigger mechanism on said hand grenade had been released by the said James B. Madison and the said hand grenade thereby exploding, fragments of said exploded hand grenade being thrown by said explosion at and against the said Jesse Clarence Trigg, thereby inflicting a mortal wound on the said Jesse Clarence Trigg of which mortal wound the said Jesse Clarence Trigg then and there died. * * *' (Italics supplied.)

The motion to quash charged (1) the facts stated in said indictment did not constitute a public offense, and (2) said indictment does not state the offense charged with sufficient certainty.

It is well settled that an offense need not be charged in the exact language of the statute. Wilson v. State, 1953, 232 Ind. 495, 498, 112 N.E.2d 449. Words which import the same meaning will be sufficient. Peltz v. State, 1953, 232 Ind. 518, 522, 112 N.E.2d 853. The language was not uncertain or ambiguous and every fact necessary to constitute the crime of murder in the first degree, as defined by § 10-3401, Burns' 1942 Replacement, was directly and positively alleged. There was no merit in the motion to quash or the motion in arrest of judgment. Each was properly overruled.

The state's contention is frivolous that appellant's original bill of exceptions No. I and his special bill of exceptions No. 2 are not properly in the record. It is sufficient to note that Rule 2-3 was fully satisfied, and both bills are properly in the record.

The appellant did not take the witness stand in his own behalf, nor did he introduce any evidence in defense of the charge. The State introduced the confession of the appellant and produced a number of witnesses, some of whom were soldiers who had been stationed at Camp Breckenridge. Some of the evidence is conflicting, as would be inevitable when the homicide grew out of a free for all fight involving from 50 to 100 men and women, but the general picture appears too plain to be ignored.

Appellant was a Negro paratrooper, nicknamed 'Trooper' or 'Big Trooper,' just returned from the Korean War, and stationed at Camp Breckenridge. The evening of July 31, 1953, he and other soldiers went to Evansville. He visited various drinking places including one where gambling was openly conducted, and about 2:00 a. m., August 1st, he arrived at Ted Cole's Barbecue, which was operated as a dance hall, barbecue and an after hours liquor rendezvous. Appellant bought a ticket to the dance floor and danced for about fifteen minutes, went outside, bought a barbecue sandwich, which he sat down to eat. A fight had started in the dance hall and moved to the outside. It was a free swinging, free for all, drunken brawl, with about everybody involved using fists, knives and clubs. One Amazon was stabbing with a coke bottle with a broken neck. Somebody knocked the sandwich out of appellant's hand as he was eating it. Appellant attempted to act as a peacemaker, and as often happens, his peaceful efforts only brought further trouble upon himself. One of his soldier friends, Eddie Wright, under the influence of liquor, was trying to fight, while appellant was trying to get him away in a car. Appellant hit him three times in order to quiet him and had knocked Eddie down, and as he bent over to pick him up and take him to a car someone hit the appellant over the back with a long board, generally described as a 2 by 4 or larger, which was broken by the force of the blow.

Another soldier by the name of Boxx had an Oldsmobile which had some hand grenades in the trunk. Appellant obtained one, and pulled the safety pin with his teeth. This held the crowd back. Boxx backed out toward State Road 41 and started to drive away. Some of the crowd shouted, 'there they go in the green Oldsmobile, shoot at the Oldsmobile.' Appellant put his hand out of the car and dropped or threw the hand grenade, which alighted at the feet of one Frank Couch, an ex-convict who had been selling tickets at the dance floor early that evening. Couch kicked the grenade, and it exploded near Jesse Clarence Trigg, killing him as he held an open knife in his hand. Appellant was arrested later that morning in Evansville.

Appellant challenged the array of the regular panel of the petit jury of the Vanderburgh Circuit Court, alleging that one of the jury commissioners, Harry Fitzgerald, had not resigned when his successor, Henry Brink, was appointed 'to act for the time being' as jury commissioner. However, it developed on the hearing on the challenge that the commissioner Fitzgerald was away on a vacation and became ill and was in the hospital two days before his successor was appointed. Section 4-3303, Burns' 1946 Replacement, provides for the appointment of a jury commissioner 'to act for the time being' if a jury commissioner fails 'to act when required, or because of illness or for any other cause' he should be 'unable to act.' The jury commissioner was duly sworn, but the record fails to show he was instructed concerning his legal duties. The jury commissioner in our opinion was a de jure jury commissioner, and the presumption on collateral attack is the court did its duty unless the record shows to the contrary. There is no suggestion that any members of the regular panel were not chosen pursuant to law or that fraud or corruption entered into their selection in any manner. The situation is entirely different from that disclosed in Rudd v. State, 1952, 231 Ind. 105, 107, N.E.2d 168. The challenge to the array was properly overruled.

'Malice may be presumed from the intentional use of a deadly weapon in such a manner as is likely to cause death. Stice v. State, 1950, 228 Ind. 144, 89 N.E.2d 915; Mosier v. State, 1942, 219 Ind. 669, 40 N.E.2d 698; Perkins v. State, 1934, 207 Ind. 119, 191 N.E. 136; Ewbank's Indiana Criminal Law (2d Ed.) § 889, p. 672, and authorities cited therein.' Myles v. State, Ind. 1955, 124 N.E.2d 205, 207. The jury had the right to find that when the grenade was thrown or dropped appellant had the felonious intent to injury or to kill any member of the crowd within its potential range. Noelke v. State, 1938, 214 Ind. 427, 431, 15 N.E.2d 950; Lloyd v. State, 1934, 206 Ind. 359, 189 N.E. 406; Brown v. State, 1897, 147 Ind. 28, 46 N.E. 34. The fact that Couch kicked the grenade did not break the line of causation. Scott v. Shepherd (1773), 3 Wils.K.B. 403, 95 Eng. Reports (Full Reprint) 525. (Squibb Case.) There was no variance in the proof as to malice and intent.

Appellant insists the court erred in giving its instruction No. 10, which is as follows 'Where there is a doubt existing as to which of two or more degrees of an offense the defendant may be guilty, he must be convicted of the lower degree only.'

In compliance with Rule 1-7, appellant made specific objections to the giving of this instruction on the grounds that there was an inference arising from the instruction that he was guilty of some offense, that it did not state the various degrees of included offenses in the indictment, and that if there was a reasonable doubt that he was guilty of manslaughter, he should be found not guilty, and that it made no provision for a finding of not guilty.

It should be noted that the instruction did not cover all of § 9-1806, Burns' 1942 Replacement, which is as follows:

'A defendant is presumed to be innocent until the contrary is proved. When there is a reasonable doubt whether his guilt is satisfactorily shown, he must be acquitted. When there is a reasonable doubt in which of two or more degrees of an offense he is guilty, he must be convicted of the lowest degree only.' ¹

Instruction No. 10 was complete within itself, and certainly left the inference that he might be convicted of an included offense without having been proved guilty thereof beyond a reasonable doubt. This inference was not discussed in Newport v. State, 1895, 140 Ind. 299, 302, 39 N.E. 926. ² The instruction contains the clause 'he must be convicted of the lower degree only.' It is therefore mandatoryin character and must contain all the elements necessary for conviction. The instruction omits the most necessary element--that the defendant was in fact guilty of an offense charged. Failing to do so, the instruction is fatally defective.

Since the decision in ...