Mitchell v. State

• Decision Date: 16 March 1923
• Docket Number: No. 23969.,23969.
• Parties: MITCHELL et al. v. STATE.
• Court: Indiana Supreme Court

193 Ind. 1

138 N.E. 507

MITCHELL et al.

v.STATE.

No. 23969.

Supreme Court of Indiana.

March 16, 1923.

Appeal from Circuit Court, Crawford County; Wm. Rideley, Judge.

Calvin Mitchell and Lon Mitchell were convicted of murder, and they appeal. Reversed, with instructions to grant new trial.

Robert W. Armstrong, of Tulsa, Okl., Henry W. Mock, of English, and Clyde H. Jones and M. B. Lairy, both of La Fayette, for appellants.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

TOWNSEND, J.

Calvin, Lon, and Arthur Mitchell, brothers, were jointly indicted for the murder of one John Lawrence. Calvin and Lon were convicted, sentenced to life imprisonment, and Arthur was acquitted.

[1] The error assigned is the overruling of appellants' motion for a new trial. The first question is the sufficiency of the evidence. It is established by direct evidence that John Lawrence was shot on September 12, 1920, at about 7 o'clock in the morning, by some one who concealed himself behind a rock which projected three or four feet above the ground, about 120 yards up the hillside from the back porch of the residence of Lawrence's brother-in-law. Lawrence and his brother-in-law were returning from the barn where they had gone to feed the stock. Lawrence's wife was standing on the back porch at the time that Lawrence approached the porch, and as he reached the porch the shot was fired, and his wife saw the smoke of the powder arise in the vicinity of the rock. A 45-caliber bullet, supposed to be the one that passed through the body of Lawrence, was picked up in a cornfield some distance beyond the point where Lawrence stood. The bullet passed through Lawrence's heart, and he died instantly. No witness saw any one back of this rock on the hillside. No witness saw any of the defendants in the vicinity that morning. The evidence as to who planned and executed this crime is all circumstantial. The grass and weeds back of the rock were tramped down as though some one had been there for some time. The twigs of the brush in front of the rock had been broken off or cut away to give a clear view. About one-quarter of a mile from the rock the print of a man's shoe or boot was discovered in the mud. The evidence shows that about 2 o'clock that morning there had been a hard rainstorm in that vicinity so that where the ground was not covered with vegetation there was mud. This footprint was found intermittently from this point to within about a quarter of a mile of Calvin Mitchell's residence. It is indicated by the evidence that the distance from the rock to the Calvin Mitchell residence, taking the course of the footprints as they appeared intermittently, is about one mile and three-quarters. The evidence shows that the sheriff of Crawford county, together with others who had bloodhounds, followed this human track, and the investigation of the situation resulted in the arrest of Lon and Calvin Mitchell on the following day.

At the time of the arrest there was found in the Mitchell home an army rifle of the type used in the Spanish-American War, from the magazine of which cartridges were taken. The evidence shows that the bullet picked up in the cornfield, at a point indicated by the range from the rock, weighed one grain less, apothecaries' weight, than a bullet extracted from a cartridge taken from the magazine of the rifle. The evidence shows that there were four rifles and four lands in the gun found in Mitchell's possession. The evidence shows that the bullet found in the cornfield was of the caliber and the character, as to its markings, to indicate that it had been fired from that gun. Of course this evidence is disputed, but we are stating the evidence that the jury had a right to believe. The evidence also shows that there was enmity between the Mitchell brothers and Lawrence; that as early as 1918 Arthur Mitchell and John Lawrence had a quarrel; that John Lawrence drew a razor and pursued Arthur, who drew a knife on Lawrence; that at that time Lon Mitchell knocked John Lawrence down with a rock. It is also shown that on August 31, 1920, Cal Mitchell claimed to have been shot through the foot from ambush by some one; that he called the attention of a man in the vicinity to the hole in his wagon box and the fact that he had been shot through the foot, and said to this man that he believed that John Lawrence had shot him.

Witnesses testified as to the size and character of the footprints, but no evidence was produced as to the size, kind, or character of boots or shoes which either of the appellants was wearing, or had at the time of arrest. There is no evidence of identity between the footprints and the boots or shoes worn by either of the appellants. Counsel for appellants insist that because there was no such identification and inasmuch as there was no footprint within a quarter of a mile of the rock, or within a quarter of a mile of the residence, the jury were not reasonable in drawing the inference of guilt. That is to say, that this court in reviewing their action shall say, as a matter of law, that the evidence does not point so surely and unerringly to guilt that this court should permit a conviction to stand.

Counsel for the appellants say that the only evidence which could form a basis for an inference of guilt is that concerning footprints and that concerning the gun and the bullet, and, even though it were to be admitted that such evidence was sufficient to justify the inference that either Cal alone or Lon alone fired the shot, the inference is just as probable when applied to one as when applied to the other; that under such a state of the evidence an inference of guilt cannot be drawn against both of the appellants jointly, or against either of the appellants separately. In answer to this it may be said that the evidence shows that Cal was still suffering from a gunshot wound in his foot, so that he was unable to do his fall plowing, and Lon had come to help him. If the jury inferred from the circumstances in the case that the Mitchell brothers had enmity towards John Lawrence, and wanted to kill him, they might have inferred that Cal was unable to walk that distance, and that Lon did the actual killing.

Counsel say that it must be inferred, first, that the footprints found are the footprints of the assassin; second, that they are the footprints of one of the appellants. But they say that the footprints are not found closer to the rock than a quarter of a mile, nor closer to Cal Mitchell's house than a quarter of a mile; that therefore the reasoning that the track was made by the assassin, and then that one of the Mitchells made the track, is basing an inference upon an inference, a thing which the law will not permit. Counsel's logic is compelling, if the premises are correct. The trouble with the reasoning is that for the moment counsel have excluded everything but the footprints, and assumed that there is no other evidence that the offender came from the Mitchell home. But it must be remembered in this connection that Lawrence was shot by a high-powered gun; that his assassin was about 120 yards distant; that the bullet passed clear through Lawrence's body and went on through a ridge of dirt in the cornfield, and through a cornstalk, and was picked up about 75 yards beyond where Lawrence stood. It must be kept in mind that a gun of the type to do this shooting was found in Cal Mitchell's home; that the evidence shows that the bullet fits the gun, and has markings that would be made by the rifles in that gun; that there is evidence tending to show that this is the only gun of that kind in that community. We do not mean to say that the evidence concerning the gun and the bullet is all undisputed. We are simply reciting that from which the jury and the trial court had a right to draw inferences.

There is another reason why we would not be inclined to disturb the judgment if sufficiency of the evidence were the only question. It appears that a map was introduced, to which witnesses referred while describing the topography of the vicinity and the location of woods, brush, fields, roads, and crops. This map is not in the record. Now the scene of this crime is in western Crawford county. It is obvious that a human track within a quarter of a mile of a given place in a hilly country might indicate that the one making the track went to, or came from, that place; whereas in a country of a different topography it might not so indicate.

Appellants next claim error in instructions. The trial court undertook to cover the law applicable to the facts in the instructions which he gave on his own motion. He refused all other instructions. Appellants first complain of court's instruction No. 15, which is:

“Proof of motive on the part of the state is not indispensable nor essential to a conviction. While the motive to commit a crime may be shown as a circumstance to aid in fixing the crime on the defendant, yet the state is not required to prove a motive on the part of the defendant in order to convict him. But in any case evidence establishing or tending to establish motive or lack of motive upon the part of the accused to commit the crime with which he is charged is proper, and should be considered by the jury. And, in a case where there is no direct evidence that the accused actually did the killing, but is purely circumstantial in its character, then the question of the presence or the absence of motive becomes of greater importance.”

[2] Counsel for the appellants claim error in this instruction because the last sentence in the instruction tells the jury that, where there is no direct evidence that the accused did the killing, then the question of the presence or absence of motive becomes of greater importance. They say that it is not the province of the court to express any opinion as to the importance of any item of evidence; but, when the court says that certain evidence...