McKinstry v. State, No. 1074S208

Docket NºNo. 1074S208
Citation338 N.E.2d 636, 264 Ind. 29
Case DateDecember 11, 1975
CourtSupreme Court of Indiana

Page 636

338 N.E.2d 636
264 Ind. 29
Johnny B. McKINSTRY, Appellant,
v.
STATE of Indiana, Appellee.
No. 1074S208.
Supreme Court of Indiana.
Dec. 11, 1975.

[264 Ind. 30]

Page 637

Thomas H. Singer, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for appellee.

DeBRULER, Justice.

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

Page 638

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 [264 Ind. 31] 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, 'God help me. They are killing me.' 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 [264 Ind. 32] 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.

Page 639

The doctor was asked: 'Could this death have been causd by stangulation with a human arm?' He replied: 'Not as such. . . . I found a strangulation mark . . . consistent with the application of force used by an arm, possibly, but to say it is the cause of death, I would say I doubt it.'

The doctor was asked to give an opinion about the force which caused the injuries. He replied:

'To have this wound, there may be blows to the neck and holding the throat by the hand, and because the cornu of [264 Ind. 33] the thyroid cartilage is not in a horizontal line with the surface of the body,--it is deeper, it is in a deep level--so it could not be fractured unless it was caught by the hand or the force extended, force applied to it so excessive, and the body was...

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21 practice notes
  • Drollinger v. State, No. 778S146
    • United States
    • Indiana Supreme Court of Indiana
    • August 26, 1980
    ...668, 359 N.E.2d 244, 248. Malice is any evil design, the dictate of a wicked, depraved and malignant heart. McKinstry v. State, (1975) 264 Ind. 29, 35, 338 N.E.2d 636, 640, quoting 4 W. Blackstone, Commentaries 198. Premeditated malice, in the context of murder, is shown where a mind has co......
  • Neff v. State, No. 3-1276A292
    • United States
    • Indiana Court of Appeals of Indiana
    • August 14, 1978
    ...of Malice Aforethought, 43 Yale L.J. 537, 567-70 (1934); 4 W. Blackstone, Commentaries * 201." McKinstry v. State (1975), Ind., 338 N.E.2d 636, at This latter definition demonstrates the relationship between the mental[177 Ind.App. 254] elements involved in the various homicide offenses. Th......
  • Johnson v. State, No. 379S81
    • United States
    • Indiana Supreme Court of Indiana
    • January 23, 1980
    ...Chatman v. State, (1975) 263 Ind. 531, 334 N.E.2d 673, and from the circumstances surrounding the killing, McKinstry v. State, (1975) 264 Ind. 29, 338 N.E.2d Defendant's allegation that the verdicts were contrary to law presupposed that the evidence was insufficient to support them. That is......
  • Feggins v. State, No. 676A176
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 1977
    ...of passion induced by sufficient provocation.' Shackleford v. State, (1976) Ind., 349 N.E.2d 150, 154; McKinstry v. State, (1975) Ind., 338 N.E.2d 636, The often stated rule that malice may be inferred from the intentional use of a deadly weapon in a manner likely to cause death or great bo......
  • Request a trial to view additional results
21 cases
  • Drollinger v. State, No. 778S146
    • United States
    • Indiana Supreme Court of Indiana
    • August 26, 1980
    ...668, 359 N.E.2d 244, 248. Malice is any evil design, the dictate of a wicked, depraved and malignant heart. McKinstry v. State, (1975) 264 Ind. 29, 35, 338 N.E.2d 636, 640, quoting 4 W. Blackstone, Commentaries 198. Premeditated malice, in the context of murder, is shown where a mind has co......
  • Neff v. State, No. 3-1276A292
    • United States
    • Indiana Court of Appeals of Indiana
    • August 14, 1978
    ...of Malice Aforethought, 43 Yale L.J. 537, 567-70 (1934); 4 W. Blackstone, Commentaries * 201." McKinstry v. State (1975), Ind., 338 N.E.2d 636, at This latter definition demonstrates the relationship between the mental[177 Ind.App. 254] elements involved in the various homicide offenses. Th......
  • Johnson v. State, No. 379S81
    • United States
    • Indiana Supreme Court of Indiana
    • January 23, 1980
    ...Chatman v. State, (1975) 263 Ind. 531, 334 N.E.2d 673, and from the circumstances surrounding the killing, McKinstry v. State, (1975) 264 Ind. 29, 338 N.E.2d Defendant's allegation that the verdicts were contrary to law presupposed that the evidence was insufficient to support them. That is......
  • Feggins v. State, No. 676A176
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 1977
    ...of passion induced by sufficient provocation.' Shackleford v. State, (1976) Ind., 349 N.E.2d 150, 154; McKinstry v. State, (1975) Ind., 338 N.E.2d 636, The often stated rule that malice may be inferred from the intentional use of a deadly weapon in a manner likely to cause death or great bo......
  • Request a trial to view additional results

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