McCutcheon v. State

• Citation: 155 N.E. 544,199 Ind. 247
• Decision Date: 09 June 1927
• Docket Number: No. 25224.,25224.
• Court: Indiana Supreme Court
• Parties: McCUTCHEON v. STATE.

199 Ind. 247

155 N.E. 544

McCUTCHEON

v.STATE.

No. 25224.

Supreme Court of Indiana.

March 9, 1927.

Petition for Rehearing Denied and Opinion Modified June 9, 1927.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Wallace McCutcheon was convicted or murder, and he appeals. Affirmed.Fae W. Patrick, Clarence Wysong, and E. Louis Moore, all of Indianapolis, for appellant.

Arthur L. Gillion, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.

MARTIN, J.

The appellant was indicted and tried by a jury, which returned a verdict finding him guilty of murder in the first degree and fixing his punishment at death. The court pronounced a judgment delivering him to the warden of the state prison and directing that he there be put to death by electrocution. A motion for a new trial was overruled, and the appellant appeals.

[1] Counsel in the oral argument earnestly insisted that because of the youth of appellant, because the extreme penalty of the law has been imposed, and because appellant was represented in the trial court by the county attorney for the poor, has appealed under the statute providing for appeals as a poor person, and is represented here by volunteer counsel, the court should carefully consider all the alleged errors now complained of, even though proper exceptions as to some of them were not taken below. The suggestion of counsel, made in both argument and brief, that appellant “did not receive proper representation” in the trial court, is not borne out by a careful examination of the record, and it appears that appellant's attorneys, both in the trial court and in this court, have performed their full duty. Appellant was found guilty on positive, uncontradicted evidence that fully supports the verdict, and the most that his attorneys can possibly hope for is to secure a new trial wherein the jury might fix the punishment at life imprisonment rather than at death. As appellant points out, the inflicting of the death penalty is a solemn and momentous duty, and great care should be taken “in reviewing a capital conviction, before we lend our sanction to the taking away of that which, when taken away, we cannot restore.” Noel v. State, 17 Okl. Cr. 308, 188 P. 688. For these reasons we have given the utmost care and consideration to all points raised or attempted to be raised by appellant, and now state the facts and such points fully, even at the risk of extending this opinion beyond a reasonable length.

There is no controversy over the evidence or the fact that the appellant shot and killed John Ward. The narration of the overt act appears from appellant's confession, from his testimony, and from decedent's dying declaration. A portion of the written confession, signed by the appellant, and introduced in evidence by the state, is as follows:

“As I got close to the Big Four elevation on Prospect street, a man rode up on a bicycle and got off in back of me. He started to lead the wheel across the mud, and I fell behind him. We were both walking towards the elevation and the man was 6 or 7 feet in front of me. When we got under the overhead, which runs across Prospect street, I pulled the revolver from my belt and told him to throw up his hands. He said nothing, dropped his wheel, and threw his hands up. I told him to take his coat off, and he did. I asked him to give me his money. He put his right hand in his pocket and pulled some money out of his pants pocket. He did not have enough money in his hand, and I refused to take it. I had the Colt's automatic pistol in my left hand, and I had the trigger pulled back ready to fire. I was shaking and nervous, and pulled the trigger while he had his hand up and facing the north wall of the overhead support, and I had the gun pointing at his back and was several feet from him. When I fired the shot, I ran and went up the embankment on the south side of Prospect street, up on the railroad, directly to my home. I then undressed and went to bed. Monday evening, when I read the Indianapolis News and learned the man, whose name was John Ward, was the man I shot and killed.”

The police officer who “made the run” to the scene of the murder about 10 p. m. January 17, 1926, testified: That, before Ward was sent to the City Hospital where he died, “we talked to Ward and asked him how he got shot.” That he said:

“He was on his way to work at the Pennsylvania Railroad, and as he approached the elevation over Prospect street he got off his bicycle to lead it across the mud. He said he walked over towards the north wall, and a young colored man came up with a 45 automatic revolver and pointed it at him and told him to put up his hands. He said he put up his hands, and the colored man said ‘Take off that overcoat.’ He said he took off his overcoat and dropped it on the ground. He said the young colored fellow walked from the front towards the rear and started around behind him and said, ‘I am scared of you.’ He said he got behind him and said, ‘Give me your money.’ Ward said, ‘I told him, I have only 30 cents, but you can have that,’ and he said the next thing he knew he was shot. Ward said he offered no resistance whatever, and gave no reason at all for this man shooting him.”

Another witness, a bystander who heard this dying declaration, testified to the same facts as the police officer. The appellant, when placed upon the witness stand in his own defense, confirmed his confession and the police officer's report, by testifying that:

“On Sunday night, January 17, I walked east in Prospect street, and as I approached the overhead elevation I saw a man with a bicycle, who arrived at the overhead at about the same time. I drew a gun and pointed it at the man. I demanded that he hold up his hands and hand me his money. The man did not do or say anything as he did not get a chance to, for then the gun went off. I did not say to him that I was scared of him. I was not scared, I was nervous. Then I went home.”

Other facts pertinent to this appeal, as shown by the evidence, are as follows: The appellant stole the pistol with which he killed Ward from the home of his companion and friend, John Andrew Smith. After committing the crime, he hid the pistol. When it was recovered by the police, appellant first said that Smith had given it to him, and accused Smith of shooting Ward. Upon Smith's denial and establishing an alibi, appellant said, two days later, “I lied to you; Horace Paragon was the fellow.” Paragon was brought in, and it was proved that this statement was also a lie. Finally, four days after that, when confronted with a letter which he had addressed to his mother and his uncle, appellant made the third confession, which was quoted from above. In the last confession, and in his testimony, appellant goes into detail about stealing the gun, says he gave it to his brother “to pawn for money to help my mother pay the rent”; tells of inquiring of his brother about 7 p. m. where the gun was, of a penny ante poker game he participated in with Horace Paragon and others from 7 to 8 o'clock, in which he won about 30 cents, of going home where he got the gun and $1.50 from his mother to get a prescription filled, of going to the drug store where he found he had left the prescription at home, and that he bought 5 cents worth of candy, paying for it with a $1 bill.

Appellant was 16 years and 4 months old at the time this crime was committed. He testified that he lived with his mother, his brother, who was 24 years old, and two sisters, one 5 years and one 3 months old, that he had not seen his father for 9 or 10 years, and that his father and mother had been separated during all of that time; that he was in the eighth grade in school; that he had been convicted of larceny in city court 5 or 6 months prior to the murder trial; that he had been arrested “in a raid at Samuel Cameron's house,” and that he had also appeared in the juvenile court in answer to some charge against him; that he weighed 86 pounds, and had never held any job, and could not get one; that he had never had a pistol before, and never had any experience with firearms; that he did not intend to shoot Ward; and that the gun went off accidentally.

[2][3] The statute under which appellant was indicted in two counts provides that:

“Whoever, purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate, a rape, arson, robbery or burglary, or by administering poison, or causing the same to be administered, kills any human being, is guilty of murder in the first degree, and, on conviction, shall suffer death or be imprisoned in the state prison during life.” Acts 1905, c. 169, § 347 (section 2412, Burns' 1926).

The first count of the indictment alleged that appellant “unlawfully, feloniously, purposely, and with premeditated malice did kill and murder John Ward,” and the second count alleged that he “unlawfully and feloniously did kill and murder said John Ward while engaged in an attempt to perpetrate the crime of robbery.” Appellant contends that there is no evidence in the record on which a conviction on the first count of the indictment could be based, and that, although his counsel made no motion to withdraw the first count from the consideration of the jury, “it was the duty of the court to protect the defendant's rights by taking such action of its own motion.” Each count of the indictment alleged acts which constitute the same crime-murder in the first degree-and which are punishable by the same penalties, death or life imprisonment, and we do not believe that appellant's rights were infringed by failure to withdraw the first count. The allegations of the second count were proved clearly and without dispute, and, even if the first count had been insufficient, there would be no available error as the general verdict will be conclusively presumed to be based upon the good count. Stucker v. State, 171 Ind. 441, 84 N. E. 971. See, also, McPherson...