McKinstry v. State
| Decision Date | 11 December 1975 |
| Docket Number | No. 1074S208,1074S208 |
| Citation | 338 N.E.2d 636,264 Ind. 29 |
| Court | Indiana Supreme Court |
| Parties | Johnny B. McKINSTRY, Appellant, v. STATE of Indiana, Appellee. |
Thomas H. Singer, South Bend, for appellant.
Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for appellee.
Appellant, Johnny B. McKinstry, was indicted for second degree murder, IC 35--1--54--1, being Burns § 10--3404. In a trial without jury, before Judge William A. Hosinski, appellant was found guilty of second degree murder. He was sentenced to a term of fifteen to twenty-five years and fined two hundred dollars. After the court denied his motion to correct errors, he appealed on two grounds: (1) the sufficiency of the evidence to support a finding that appellant killed the victim and (2) the sufficiency of the evidence to show that appellant killed the victim 'purposely and maliciously.'
The evidence supporting the decision of the trier of fact shows that on the afternoon of November 24, 1974, appellant and the victim, Thomas Carter, were both prisoners in the St. Joseph County Jail. At the time of his death, Carter had been in jail only fifteen hours for hitchhiking. The cellblock which the two shared with about eight other prisoners was divided into one four-man cell and two eight-man cells, all opening out into a common day room. The cell doors were never locked. From the dayroom, one could see into the cells, but the walls prevented one from seeing from one cell into another.
Appellant hung a blanket over the front of his cell, as prisoners sometimes did to keep out the light when they wanted to sleep. Appellant told another prisoner, Giles, that he was going to have a man-to-lady talk with Carter. Giles understood this to refer to sodomy. Prisoner Grady Bobbitt was in appellant's cell with him. Later, Carter came to the cell.
Several prisoners in the two other cells heard a scuffle, and then Carter screamed like someone being tortured. He cried out, 'It hurts.' Prisoner Rogers went down to appellant's cell because he wanted to share in the sodomy he thought was occurring. In less than a minute, he returned to his cell and told the other prisoners there that he wanted no part of that.
Another prisoner, Palicki, hearing the commotion and hearing Carter scream for help, went out into the catwalk and looked into the cell. Appellant was holding Carter in a headlock, and Bobbitt was standing close behind Carter. Carter's buttockswere bare. Carter was yelling for the guard and screamed, No one else was in the cell, and none of the prisoners who looked in tried to help Carter. Prisoner Miller witnesses the same scene: Only appellant, Bobbitt, and Carter were in the cell. Carter was bent over at the waist, and appellant had him in a headlock and was pulling up on his right arm. Bobbitt was standing at Carter's right, as if we were going to commit sodomy. Carter's clothes were down to his waist and ripped.
When the guard came in, prisoner Flynn turned the volume up on the radio. The guard asked for the blanket to be taken down. Prisoner Davis finally took it down, and Bobbitt came walking out. Appellant was lying in a lower bunk with his face to the wall. Carter was lying on the floor. Davis started to pat his face, thinking he might have fainted. He made one gasping sound and died. About three seconds after Davis entered the cell, appellant got up, yawned, and asked what was going on.
A half hour after Carter's death, appellant and four other prisoners were talking. Appellant told Bobbitt that, if push came to shove, he could take it all on himself and leave Bobbitt out of it. He also said that if anyone told on him, that (they should remember) they were going to prison with him and that those who were not going to prison, his family would take care of for him. He said that everyone should just be quiet, because they could not prove anything and people die in jail every day.
The medical testimony showed that the victim, Thomas Carter, died of asphyxiation due to strangling, throttling, and smothering. It was physically impossible for his death to have been suicide. His death would not have resulted from strangulation in an arm alone, but required the throttling, that is, holding the throat by the hand by force, thereby obstructing the air passages, and ultimately resulting in a fracture of the cornu of the thyroid cartilage.
The medical testimony was important evidence of the types of acts and the decree of force necessary to cause Carter's death. The doctor was asked: 'Could this death have been causd by stangulation with a human arm?' He replied:
The doctor was asked to give an opinion about the force which caused the injuries. He replied:
On cross-examination, the defense asked: 'You said you didn't think it was possible, this strangulation or throttling, as you called it, with an arm around the neck?' The doctor's reply indicated that the headlock could not have caused the throttling. 'It is the throttling cannot be by the arm.'
The defense asked also about the force which would cause the fracture.
'Q. Could the fracture of that cartilage you have talked about occur with the fall of the neck against a sharp object or cell bunk?
A. My answer could be no.
Q. It could not occur?
A. It cannot occur. I have to have some other evidence with it in orto say that.
Q. Not possible to occur in a fall?
A. Just a fall that causes fracture to this particular bone per se, I would say no.
A. (T)he structure of the bone itself is very, very important. And so this bone is malleable, its structure does not allow it to fracture from minor injuries by a fall, either on a blunt or a sharp object. You will have certain type of wounds in the neck and, if I have a fracture of that bone, it will give me a certain pattern. We have special pattern for each type of injury. So my answer would be no, sir.
Q. We have got a man that you said weighed about 190 pounds, and if he fell and hit his neck against a blunt object, isn't it possible, Doctor, that he could have fractured this cartilage?
A. Still my answer would be no. That's my best judgment.'
This evidence would support the court's finding that appellant killed Carter. Carter entered the cell where appellant and Bobbitt were. No one else entered after Carter, and Carter died of wounds, which were not self-inflicted, within five minutes of his entering the cell and screaming for help. Two prisoners saw appellant holding Carter in a headlock and wrestling with him. Both testified that, while they watched, Bobbitt only stood near Carter ready to commit sodomy. A minute or two later, Carter was lying on the floor dead from asphyxiation due to strangling and throttling. Although the doctor testified that a human arm alone could not have caused Carter's death, the trier of fact could have inferred appellant's throttling Carter with his hand as he was holding him in a headlock or after he had released the headlock. It is not necessary that there be an eyewitness to a crime. The trier of fact is permitted to infer the guilt of the accused from circumstantial evidence.
The second issue presented is whether the State proved beyond a reasonable doubt that...
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