Miller v. State

• Decision Date: 13 December 1944
• Docket Number: 28006.
• Citation: 58 N.E.2d 114,223 Ind. 50
• Parties: MILLER v. STATE.
• Court: Indiana Supreme Court

58 N.E.2d 114

223 Ind. 50

MILLER v. STATE.

No. 28006.

Supreme Court of Indiana

December 13, 1944

Appeal from Hamilton Circuit Court; Cassius M. Gentry Judge.

Christian & Waltz, of Noblesville, for appellant.

James A. Emmert, Atty. Gen., Frank Hamilton, 1st Deputy Atty. Gen and Frank E. Coughlin, Deputy Atty. Gen., for appellee.

FANSLER Judge.

The appellant was convicted of murder in the second degree and sentenced to life imprisonment. His motion for a new trial was overruled, and error is assigned here upon the giving and refusal to give certain instructions.

There is evidence that the defendant, 46 years of age, is a veteran of the First World War. He saw active service in the front lines and was gassed and shellshocked while cutting barbed wire entanglements between the lines. He never fully recovered from those experiences, and he draws a pension from the government. He is partially blind in one eye and repeatedly went to a Veterans' Hospital for treatment. 'When there was a sudden loud noise he would become hilarious, emotional and excited and that he talked incoherently and would repeat many times what would be said; that on such occasions he would look wild. On those occasions when he talked incoherently and looked wild that his conversation was 'irrational." He was unmarried and lived with his mother. The man who was killed was his life-long friend. They were described by witnesses as 'buddies.' The appellant said he was his 'true friend.' On the evening of January 15, 1943, the appellant and the deceased were in a tavern from 9 o'clock to approximately 11 o'clock. They drank two bottles of beer each during that time and appellant drank some wine. Each had a sandwich and coffee before they left the tavern. At appellant's invitation his friend went with him to his home, and they took three bottles of beer with them. At approximately 2:45 o'clock in the morning the appellant went to the house of a neighbor announcing excitedly that he had killed a man, that he did not know who he was, that 'they have got me for murder.' He asked the neighbor to call the sheriff. The sheriff and appellant's brothers went to appellant's home. The deceased was found sitting in a chair close to the wall, with his head resting against the wall and his arms hanging down. In one hand was a cigarette which had burned down to his fingers and gone out and in the other hand was a box of matches. There was a bullet hole in his head, and the bullet, afterwards located in the brain, was found to have been fired from the revolver hereafter referred to. Death was instantaneous. The appellant made various statements at that time. He was loud and boisterous and laughed hilariously. He kept repeating such expressions as 'dead as hell, ain't he.' Wintnesses described his conduct as 'hilarious, hysterical, and silly.' One witness said that the appellant was sitting in a chair, laughing and talking, and asked some of those present if Mallott was not dead, and if they had ever seen a deader man. This witness 'thought he wasn't coherent,' that there was something wrong with him; he thought he was 'out of his head on account of too much liquor,' that he was just coming out of an intoxication, 'that there was something terribly wrong with his mind.' At this time appellant said he went to get his brother's address out of a table drawer for the deceased; that the deceased took from the drawer an ancient rim-fire revolver and was examining it to find the name of the maker; that the appellant attempted to take the gun away from him and it went off. The three beer bottles were found empty in the room. A bottle of whiskey, almost full, was found behind a door in another room, and there is evidence that this was the property of the appellant's mother and that she used it medicinally. On the witness stand the appellant testified that he and the deceased went to his home together; that they had planned to go fishing the next day; that the deceased wanted his brother's address and he went to a table drawer and got it for him; that appellant then went to stir the fire, and while he was doing this the deceased got the gun out of the table drawer and was examining it to ascertain the name of the maker; that appellant said: '* * * that is loaded, give me the gun. * * * I will unload it and then we can see what the name of it is'; that the decedent gave it to him, and, while seeking to take it apart, it was discharged accidentally when 'pointed toward the stove' in the room; that he remembered nothing that transpired from that time until much later when he was in jail; that while getting his brother's address from the table drawer he had taken out some fishhooks and given them to his friend. Fishhooks were found upon the deceased. An expert on firearms testified that the revolver was a very old one, using rim-fire cartridges; that when the gun was loaded the cylinder could be revolved only by raising the hammer; that the firing-pin is attached to the hammer; that if the hammer slipped when being drawn back it would accidentally discharge the gun. While demonstrating the workings of the gun to the jury, the hammer slipped from the thumb of the expert, and he explained that if it had been loaded it would have been accidentally discharged.

It seems to have been the theory of the defense that the bullet ricocheted from the stove. The evidence upon this question is inconclusive and does not seem highly important. There was no evidence of a struggle, and the position of the deceased seems to conclusively negative the inference that there was a scuffle for the gun in which it was discharged. There is no evidence of ill will, or trouble or motive of any kind. The witnesses say that in his incoherence the appellant kept repeating: 'He was my true friend.' It seems to have been the State's theory that the appellant was incoherent from intoxication and that the killing was the intentional act of one degraded and depraved morally because of drink. It is the defendant's theory that the killing was purely accidental, as indicated by his testimony; that the only evidence which tended to establish a criminal homicide was the incoherent and irrational statements of the defendant immediately after the accident; that he had consumed only two bottles of beer and a glass of...