Manlove v. State

• Decision Date: 16 January 1968
• Docket Number: No. 30846,30846
• Citation: 232 N.E.2d 874,12 Ind.Dec. 494,250 Ind. 70
• Parties: Edward MANLOVE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 874

232 N.E.2d 874

250 Ind. 70

Edward MANLOVE, Appellant, v. STATE of Indiana, Appellee.

No. 30846.

Supreme Court of Indiana.

Jan. 16, 1968.

Hall Cochrane, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., R. Robert Yeager, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

Appellant, Edward Manlove, by court appointed counsel, appeals from a conviction of murder in the second degree. Pursuant to such conviction he was sentenced to life imprisonment. Appellant's first allegation of error in his motion for new trial is to the effect that the verdict of the jury is not sustained by sufficient evidence.

The resolution and disposition of this appeal will be organized in three (3) parts as follows:

(1) a summary of the evidence most favorable to the appellee State.

(2) an enumeration and citation of the rules of law applicable to juries and trial courts in cases such as the case at bar where all the evidence pertaining to the essential elements of the crime is wholly circumstantial and where the sufficiency thereof is challenged on appeal.

(3) application of said rules and principles to a re sume and analysis of the circumstantial evidence.

(1)

When one who has been convicted of a criminal offense prosecutes an appeal, this Court will only consider the evidence most favorable to the State, and all reasonable and logical inferences to be drawn therefrom. Capps v. State (1967), Ind., 229 N.E.2d 794. In this case, the evidence most favorable to the State may be summarized as follows:

Decedent Lee Roy Reed left his Indianapolis home at about 7:00 P.M. on April 30, 1963 and never returned. His body was found the next morning floating in the Water Company canal. He had been shot five times in the head an neck.

An employee of the Cottage House Tavern testified that decedent Reed entered the Cottage House about 7:00 P.M. on April 30, 1963 with one Henderson X. Carruthers but that Henderson left soon thereafter. Defendant arrived about 9:30 or 10:00 o'clock and was accompanied by a tall, slender Negro with a goatee named Taylor. The employee said Reed was still present when defendant arrived.

Defendant Manlove ordered a hamburger to take out. The waitress testified that while defendant was waiting, Taylor told defendant that Reed had called defendant a name. During this time the waitress noticed that defendant had a gun; and, as defendant began to leave, she heard defendant say to Reed, 'Come on, let's go.' The waitress saw defendant and Reed leave together; at about 11 o'clock.

The bartender at the same tavern saw and heard defendant talking to Reed at the Cottage House, but could not understand what they were saying. He said defendant and Reed left 'about the same time' but he did not see them leave.

Witness O'Bannon, a post office employee, testified that at about 11:15 on April 30, 1963, while walking home, he noticed a car in the alley behind 2225 Northwestern Avenue, which is a few blocks from the Cottage House Tavern. He said there was a light on inside the auto, but that he heard nothing.

Witness Clyde Richardson lived at 2225 Northwestern Avenue on April 30, 1963, and testified that on the morning of May 1, 1963 he noticed that the fence post at the end of his yard, adjacent to a bend in alley, had been jarred so that it sat at an angle, that the post showed the imprint of the vehicle that struck it, that there were tire tracks leading to the post, and that there was some blood within 6 or 7 feet of the post. He remembered hearing 'a little bump or crash or something like that' around the time of a program change at 10:30 or 11 o'clock, but on cross-examination he testified he saw nothing in the rear of his house that night.

Guy Gilbert testified he lived 2 houses north of Richardson at 2233 Northwestern Avenue and that at about 10:30 or 11 o'clock on the evening of April 30, 1963 he saw a light colored car parked out in the alley which seemed to be up against the post. He could not identify the make or model of the car, nor could he say for sure how many people were in the car although he thought there were two. He could not tell whether they were white or Negro, male or female, but one of them got out of the car and examined the headlights, and seemed to be a male.

Mayme Gilbert, wife of Guy Gilbert, testified she saw the auto up against the post and saw a dark looking man outside of it. She said she thought she saw the man get back in the car and that there appeared to be another person in the car--a woman wearing a red hat. She said auto's headlights were on during this time. She also said that cars often use the alley at night. The alley dead ends at the Richardson property.

The next morning Reed's body was discovered about 5 blocks away from the 2200 block of Northwestern, floating in the canal. On the same day, the Indianapolis Police were notified that Chicago Police had found a 1962 Ford, light blue with white top, registered in the name of Lee Roy Reed. There was blood in the car, two spent bullet slugs and some debris.

Photos of such car were introduced showing a caved-in front bumper, and the blood spots. The blood was analyzed as group A blood. The slugs were .38 caliber.

Some time during June, defendant was arrested in Chicago and on September 11, 1963, he was returned to Indianapolis by Indianapolis Police. Police Officer Gates testified that on the trip back to Indianapolis from Chicago, and later, in December, 1963, at Police Headquarters, defendant told him and Officer Michealis that he, defendant, had been with Reed and two other men on the afternoon of April 30, 1963, first at the 40th Street Tavern, and then at the Cottage House. Defendant also told them that at between 4 and 6 P.M. the four of them drove to his mother's residence in the 2200 block of Northwestern to get some more money. Defendant said he told his companions to drive around back into the alley since there was no parking on Northwestern from 4 to 6 P.M. Defendant said he then went into the house, changed clothes and returned to the street, where his companions were supposed to pick him up, but they did not show, and while he was waiting he decided to go to Chicago. So he took a city bus to the bus station and caught the eight o'clock bus to Chicago.

Finally, he told them someone had stolen his gun.

Officers assigned to the case received pictures of Reed's damaged car from Chicago Police and began searching for a location where the damage to the car could have taken place. On May 10 they found the creosote-soaked post behind the Richardson residence, sliding tire tracks leading to the post, and a few feet away, a dark spot which appeared to be blood near the post.

F.B.I. agents had arrested Manlove in Chicago for auto theft and on June 27 he told them during interrogation he could not remember the date he came to Chicago, that he never owned a .38 revolver, but he had owned a .32 caliber gun which he had sold a couple weeks before coming to Chicago in an unknown bar to an unknown person. He told them he left Indianapolis when he heard that the Indianapolis Police were making inquiries about him relative to the slaying of Lee Roy Reed. He told them that he had assumed an alias in Chicago to avoid the F.B.I. On cross-examination of the Chicago F.B.I. agent, it came out that defendant maintained a residence in Chicago, and had lived in that city early in 1963.

Testimony by Martin Elmore, crime laboratory technician from the Indianapolis Police Department, indicated that the bullet slugs found in Reed's car in Chicago, the one slug found in Reed's body, and the one slug found in the alley in the 2200 block of Northwestern were all propelled through the same firearm.

Police Lab technician David Kerkhoff testified that the blood from the blood spot found in the alley in the 2200 block of Northwestern was type A, the same as Reed's, and that the creosote in the large post behind the property on Northwestern was the same compound as was found on the damaged portion of the bumper of Reed's auto. He also testified that two plaster casts made from the tires of Reed's auto were very similar to casts made of tire tracks in the alley at the 2200 block of Northwestern on May 10, 1963.

(2)

In our consideration of the appellant's contention of error due to the insufficiency of the evidence to sustain the verdict of the jury finding him guilty of murder in the second degree, it should be noted that all of the evidence pertaining to the essential elements of the crime charged is entirely circumstantial. Indeed, in the case at bar, most of the evidence pertaining even to subsidiary facts is circumstantial. There is no direct evidence on any issuable fact.

The rule governing juries and trial courts in the trial of criminal cases is that where the evidence necessary for a conviction is wholly circumstantial in character it must be of such conclusive and persuasive force that it tends to point surely and unerringly to the guilt of the accused to an extent that it excludes every reasonable hypothesis of innocence. Christen v. State (1950), 228 Ind. 30, 89 N.E.2d 445; White v. State (1948), 226 Ind. 309, 79 N.E.2d 771; Henry v. State (1925), 196 Ind. 14, 146 N.E. 822; Osbon v. State (1938), 213 Ind. 413, 13 N.E.2d 223.

However, it should also be stated that where there are two reasonable inferences arising from the circumstantial evidence in a case, one of guilt and another of innocence, it is not the duty or right of this Court to reverse simply because we might believe the circumstances do not exclude every reasonable hypothesis of innocence. It is the jury's function, not ours, to weigh conflicting evidence or uncontradicted evidence from which conflicting, yet reasonable, inferences may be drawn and then determine whether such evidence excludes every reasonable hypothesis of innocence. Christen v. State, supra; White v. State, supra; Henry v. State, supra; Osbon v. State, supra.

Therefore on the...