Miller v. State, 30100

• Citation: 181 N.E.2d 633,242 Ind. 678
• Decision Date: 11 April 1962
• Docket Number: No. 30100,30100
• Parties: William MILLER, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 633

181 N.E.2d 633

242 Ind. 678

William MILLER, Appellant, v. STATE of Indiana, Appellee.

No. 30100.

Supreme Court of Indiana.

April 11, 1962.

Robert S. McCain, David Keller, Fort Wayne, for appellant.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Deputy Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant was charged by indictment with murder in the second degree under Acts 1905, ch. 169, § 350, p. 584, being § 10-3404, Burns' 1956 Replacement, tried by jury, found guilty as charged and sentenced accordingly.

The sole error assigned is the overruling of appellant's motion for a new trial.

We need be concerned only with the specifications for a new trial numbered 4 and 5, which are: (4) that the verdict of the jury is not sustained by sufficient evidence; and (5) is contrary to law.

Appellant asserts that the evidence is not sufficient to sustain the verdict of the jury on the essential element of malice.

Section 10-3404, supra, provides:

'Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and, on conviction, shall be imprisoned in the state prison during life.' (Our italics.)

There is no direct evidence of malice in the record here, and if the verdict of the jury on this element of the crime is to be sustained it must be done by circumstantial evidence only.

It is contended by the State that malice is shown here by the use of a deadly weapon.

This court early adopted the rule that if an act of killing a human being 'is perpetrated with a deadly weapon, so used as likely to produce death, the purpose to kill may be inferred from the act; * * *.' Murphy v. State (1869), 31 Ind. 511, 514.

This rule has been consistently followed by this court and the current version is succinctly stated in Martin v. State (1957), 236 Ind. 504, 507, 141 N.E.2d 455, 457, as follows:

'Malice may be inferred from the intentional use of a deadly weapon in such a manner as likely to cause death.'

See also:

Landreth v. State (1930), 201 Ind. 691, 697, 171 N.E. 192, 72 A.L.R. 891; Dickinson v. State (1944), 222 Ind. 551, 555, 55 N.E.2d 325; Stice v. State (1950), 228 Ind. 144, 150, 89 N.E.2d 915; May v. State (1953), 232 Ind. 523, 526, 112 N.E.2d 439; Myles v. State (1955), 234 Ind. 129, 133, 124 N.E.2d 205 (Cert. denied, 349 U.S. 932, 75 S.Ct. 776, 99 L.Ed. 1262); Schlegel v. State (1958), 238 Ind. 374, 377, 150 N.E.2d 563.

As has been said so many times by this court, we 'will not weigh evidence when its sufficiency is questioned on appeal, but will examine the record to determine whether there is any evidence of probative value, or any reasonable inferences which may be properly drawn therefrom, which would sustain the verdict of the jury or the decision of the trial court.' Mattingly v. State (1952), 230 Ind. 431, 438, 104 N.E.2d 721, 723; Cross, Jr. v. State of Indiana (1956), 235 Ind. 611, 614, 137 N.E.2d 32.

It is also settled that it the verdict is supported by substantial evidence of probative value it will not be disturbed on appeal. Schlegel v. State, supra (1958), 238 Ind. 374, 378, 150 N.E.2d 563.

A brief statement of the facts leading up to the shooting is necessary to a better understanding of the evidence upon which the State relies to support the conviction herein.

Appellant was employed as a bartender at the Club Manhattan, a tavern located in the 'rolling mill' district of Fort Wayne, Indiana, and he was on duty the evening of the shooting on December 26, 1958.

Sometime between 7 and 8 o'clock P.M. on December 26, 1958, the deceased, harrison Tinker, (hereinafter referred to as the deceased) his brother, William 'Snoop' Tinker, and William's wife were in the tavern drinking. They were causing some disturbance, and the club 'bouncer', one Eugene Wright, went over to the booth they were occupying and asked them to quiet down or leave. They left the tavern. About 11 o'clock that same evening they returned. When they entered the front door of the tavern William Tinker was 'chasing' his wife, who ran to the back of the tavern and into the ladies' rest room. William followed her into the rest room, and 'pulled her out.' She then ran down the aisle and over to the telephone booth which was at the end of the aisle to the right and behind a cigarette machine. Her husband followed her to the telephone booth where they continued scuffling and fighting.

After William and his wife reached the telephone booth, the deceased, who weighed 280 pounds, stationed himself in the aisle directly in front of the cigarette machine which blocked the entrance to the telephone booth.

The 'bouncer' (Wright) attempted to go down the aisle to the telephone booth to reach William Tinker and his wife to break up the fight, but was stopped by the deceased who 'pulled a knife' with a 2 1/2 or 3 inch blade, and said to Wright, 'This is my brother, Gene, don't touch him.'

The deceased's attention was drawn away from Wright and at that time he (Wright) jumped over the back of the end booth, and when he was almost to the door of the phone booth he heard a shot.

Following is a summary of the evidence introduced by the State and upon which it relies.

Two eyewitnesses testified for the State. Willie Craig, who was standing across the room from the deceased, Harrison Tinker, testified that while deceased and his brother were 'arguing' appellant, Miller, 'came from behind the bar' and went up the aisle where the deceased was standing in front of the cigarette machine, and as the approached the deceased appellant 'told him to take his hand out of his pocket', to which deceased replied, that he had nothing in his pocket but keys, and as he took his hand out of his pocket he, Tinker, said, 'I don't have anything in my hand only keys, man.' This witness then testified that appellant 'pulled his hand up * * * the gun went off' and shot the deceased, Harrison Tinker. Craig further testified that he saw no knife in the deceased's hand.

Henry Ford Underwood, the other eyewitness who testified for the State, came into the club a short time before the shooting and was standing in front of the door when he saw deceased standing by the cigarette machine and a man and woman 'tussling' in the telephone booth. Underwood further testified that he first saw appellant, William Miller, behind the bar, then he left the bar and 'rushed back there where this guy was and they was fighting and Tinker was standing up by this cigarette machine', and that appellant told Tinker 'to cut out that junk back there', and 'this guy told Bill he was trying to get his wife out of there.' 'They mumbled something and Bill (appellant) got back off of him' and shot Tinker. This witness also testified that he did not see any knife in deceased's hand.

Dr. Louis A. Schneider, who performed a post-mortem on the body of the deceased, stated in a stipulation introduced on behalf of the State, that '[t]here was a through and through wound of the right thumb and internally there was a rent in the peritoneum, which is the lining of the abdominal cavity, and a tract surrounded by a relatively fresh hemorrhage which ended in an area on the left side behind or on the other side of the vertebral column in the neighborhood of the 12th rib', and that in his opinion Tinker died from shock of the bullet.

Police Officers, Novitski and Lake, as witnesses for the State, testified that they saw the deceased after he had gone to the hospital and that two wounds were visible on him, one on the right thumb and the other on the right side of his stomach.

Police Officers Lake and King, as witnesses for the State, testified that they went to the Club Manhattan sometime between 9 and 10 o'clock on the morning of December 27, the day following the shooting, and interviewed Lorel L. Smeltzer, the owner of the club. Officer King testified that 'before leaving he [Smeltzer] went behind the bar and brought out a knife and gave it to us.' Officer Lake testified that after checking the safe, doors, etc., Smeltzer came back to the bar where he had Sergeant King were standing and 'reached behind the bar and produced a knife' which he handed to Sergeant King. This knife was introduced into evidence as State's Exhibit No. 10, and was identified by appellant, on cross-examination, as the one he picked up off the floor and put on the bar after the shooting.

Because of its importance we quote below, verbatim, the questions by the Deputy Prosecutor and answers by appellant, on cross-examination, concerning the knife.

'Q. Did I understand you to say that up to the time of this shooting you did not know Harrison Tinker, is that correct?

'A. I did not.

'Q. You learned his name afterwards?

'A. I did.

'Q. And so you shot at the man, didn't you, not a person that you knew as Harrison Tinker?

'A. I shot at a knife.

'Q. And not Harrison Tinker, though, because you didn't know Harrison Tinker at that time, did you?

'A. I did not.

'Q. I now hand you, Mr. Miller, a knife which the reporter has marked for purposes of identification as State's Exhibit No. 10. Will you look at that, please? Are you in a position to tell us whether or not this is the knife that you gave to Bud Smeltzer on the evening of December 26, 1958?

'A. That's the knife I picked up off the floor.

'Q. And is it the knife that you gave to Mr. Smeltzer?

'A. I didn't give it to him. I put it up on the bar.'

The State introduced into evidence, as State's Exhibit No. 12, a statement by appellant made in the office of the Captain of Detectives in Fort Wayne, in the presence of two detectives, on the day following the shooting. Parts pertinent to the issue here under consideration are as follows:

'Q. Now William tell us in your own words and in your own way the facts as they are in reference to the fatal shooting of Harrison Tinker M. C. age 31, of 1903 Smith Street at about 11:00 p. m. December 26, 1958 at the Club Manhattan 2402 Culbertson Street Fort Wayne Allen...