Myles v. State, 29116

• Decision Date: 15 February 1955
• Docket Number: No. 29116,29116
• Citation: 124 N.E.2d 205,234 Ind. 129
• Parties: Willie E. MYLES, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 205

124 N.E.2d 205

234 Ind. 129

Willie E. MYLES, Appellant, v. STATE of Indiana, Appellee.

No. 29116.

Supreme Court of Indiana.

Feb. 15, 1955.

Clyde P. Miller, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Frank E. Spencer, Deputy Atty. Gen., for appellee.

EMMERT, Judge.

This is an appeal from a judgment on a verdict finding appellant guilty of murder in the second degree. The grand jury of Marion County returned an indictment against the appellant charging in substance that in said county he, 'Willie Buddy Myles,' on January 26, 1947, with premeditated malice did kill and murder Jesse Avery by shooting him with a pistol thereby inflicting a mortal wound upon him from which he died January 31, 1947. Appellant fied the state and was not arrested on this charge until December of 1950, when he was apprehended by the Federal Bureau of Investigation in Omaha, Nebraska, and returned to the jurisdiction of the Criminal Court of Marion County, Division 2. On motion of appellant, the venue of the cause was changed to Morgan County, where a jury trial was had. On January 23, 1952, appellant's motion for a new trial was overruled, and we granted him the right to a delayed appeal.

The assignment of errors charges the trial court erred in overruling appellant's motion for a new trial, and it also seeks to assign error in the court's finding against him on a petition for a writ of error coram nobis, which was entered May 6, 1953.

It is not necessary to consider whether appellant can prosecute a joint appeal from a judgment on the verdict convicting him, and a judgment in a proceedings for a writ of error coram nobis. Since the assignment of errors here was not filed until February 23, 1954, which is more than ninety days limited by Rule 2-40, and no leave was granted by this court to perfect a delayed appeal on the coram nobis issue, no error is properly presented as to the denial of the petition for the writ.

Appellant's motion for a new trial questions the sufficiency of the evidence to sustain the verdict. 'After conviction, we only consider the evidence most favorable to the state, and all reasonable and logical inferences that may be drawn therefrom. Keith v. State (1901), 157 Ind. 376, 61 N.E. 716; Badgley v. State (1949), 226 Ind. 665, 82 N.E.2d 841; Kallas v. State (1949), 227 Ind. 103, 83 N.E.2d 769.' Todd v. State, Ind.1954, 121 N.E.2d 726. We have carefully examined the entire record, and the jury was fully justified in finding the state had proved beyond a reasonable doubt the following facts:

Estella Rose owned a home at number 332 Agnes Street in Indianapolis, and she rented a room adjoining her bedroom to Alleene Craig, for $6 a week. Estella Rose was living with appellant, Willie Eddie Myles, nicknamed Buddy, and Alleene Craig was living with Jesse Avery, neither of the women being married. The night before the shooting T. C. Bolden and his friend Maggie Haase had slept all night in a day bed in Miss Craig's room.

On Saturday night, January 25, 1947, Estella Rose and appellant had gone to bed before Alleene Craig and Jesse Avery returned to the house about 11:00 p. m., with T. C. Bolden and Maggie Haase. The latter couples had been to two taverns and drunk some beer.

Appellant, before retiring, had written a note to Alleene Craig in substance demanding $1.50 extra if T.C. Bolden and Maggie Haase were going to share the room with Alleene Craig and the decedent. This note was placed in a 7-Up bottle, and left in Miss Craig's room. When it was discovered, Miss Craig went outside and in another door to the kitchen to find out about the note. Appellant said he wrote it, and Miss Craig returned to her bedroom. The decedent then started hammering on the door between the two bedrooms, and appellant told him not to break down the door, got out of bed and opened the door. His bedroom was dark, but there was a light in the Craig bedroom. An argument ensued, and something was thrown on the floor. As decedent turned to look, appellant shot him in the back with a Japanese pistol, the bullet penetrating the chest and liver and causing considerable hemorrhaging. It went across the room and broke a pitcher sitting on a sewing machine, and it was leter found on the floor by the city police.

None of the witnesses saw any flash from the gun, but as soon as Avery was shot he said, 'Oh, Buddy, you done shot me,' and fell in a coal box in the corner of Miss Craig's room. He got up, went out the door and across the street to a house at number 331 Agnes Street where he fell on the porch, and was laid on a swing by his friend Louis Denwitty. Before the witnesses left the bedroom appellant said to them, 'Don't none of you say anything, if you do I'll kill all you s--s o-- b_____s.' Alleene Craig went across the street and called the police department. After the ambulance had taken decedent to the hospital she, with T. C. Bolden and Maggie Haase were taken to police headquarters for questioning. Estella Rose went home to her mother. Appellant left the neighborhood and threw the gun in a box near 1006 Vermont Street. It was never found by the police officers. Estella Rose sent the appellant $30 that night, and he immediately left the state. Police detectives went to the hospital, but by the time they arrived there decedent was in shock, and was hemorrhaging so badly he could not be taken to surgery. He was given transfusions and oxygen.

On Monday following the shooting decedent made a dying declaration to Michael Smyley, a detective sergeant, in which he said appellant had shot him, that he had no reason, and he didn't know why. Decedent died the following Friday.

Appellant asserted the shooting was done in self-defense. The evidence was conflicting on this issue, and the credibility of the witnesses was for the jury to determine. Kallas v. State, 1949, 227 Ind. 103, 83 N.E.2d 769; Hauk v. State, 1897,...