Napier v. State, 373S55

• Decision Date: 17 July 1973
• Docket Number: No. 373S55,373S55
• Citation: 298 N.E.2d 427,260 Ind. 614
• Parties: Billy NAPIER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 427

298 N.E.2d 427

260 Ind. 614

Billy NAPIER, Appellant, v. STATE of Indiana, Appellee.

No. 373S55.

Supreme Court of Indiana.

July 17, 1973.

Robert S. McCain, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Lynda F. Huppert, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice.

Defendant-appellant, Billy Napier, was charged by indictment with the crime of second-degree murder in the shooting death of Patrick M. Rhine on May 23, 1972. Appellant pleaded not guilty and trial was had before a jury in the Allen Circuit Court on August 29, 1972. The jury returned a verdict of guilty as charged and thereafter, on September 25, 1972, the trial court entered judgment and sentenced the Appellant to imprisonment in the Indiana State Prison for a period of not less than fifteen (15) nor more than twenty-five (25) years. On September 28, 1972, the Appellant filed his Motion to Correct Errors. It is from the overruling of that motion that this appeal is taken.

The sole issue raised in this appeal is whether the evidence is sufficient to sustain the jury's verdict of guilty as to the charge of second-degree murder. When the sufficiency of evidence is raised on appeal, this Court will neither weigh the evidence nor resolve questions concerning the credibility of witnesses. Only than evidence most favorable to the state will be considered together with all reasonable inferences to be drawn therefrom, and if, from that viewpoint, there is substantial evidence of probative value to establish every material element of the crime beyond a reasonable doubt, the verdict will not be disturbed. Moore v. State (1973), Ind., 293 N.E.2d 28; Dunn v. State (1973), Ind., 293 N.E.2d 32; Wardlaw v. State (1972), Ind., 286 N.E.2d 649; Lee v. State (1972), Ind., 286 N.E.2d 840. The evidence most favorable to the state discloses the following facts.

On March 23, 1972, the Appellant, Billy Napier, was at the Press Box Tavern located in Fort Wayne, Indiana. He was engaged in a pool game with Donald Coe, Thomas Pollum, and Patrick Rhine, the deceased. As the game progressed, the Appellant and Donald Coe twice became involved in arguments over what the Appellant thought were Coe's illegal shots. As a result of the arguments, the game broke up when the owner of the bar ordered the parties to settle their dispute elsewhere. All of the players, with the exception of the Appellant, left the tavern by way of the rear door which opened onto a parking area located behind the establishment. Appellant followed a few moments after the other three had exited, but, just as he was leaving he told the tavern owner, 'Bud, I'm going to kill him.' (referring to Donald Coe). Once outside the tavern, the argument between Coe and the Appellant continued. As Coe dropped his arm back and leaned against a parked car, the Appellant pulled a gun from his pocket and began shooting. Several shots were fired, at least one of which hit and wounded Coe. Two of the shots hit and fatally wounded Patrick Rhine.

The Appellant contends that because the state failed to establish that the Appellant purposely and maliciously killed Patrick Rhine, his conviction cannot stand. Appellant asserts that the killing was merely an accident because he never intended to kill the decedent. The question, of course, is whether reasonable men, having heard the evidence, could reach the conclusion that Appellant purposely and maliciously took the life of the decedent. It is well settled in this state that malice may be inferred from the intentional use of a deadly weapon in a manner calculated or likely to produce death. Blackburn v. State (1973), Ind., 291 N.E.2d 686; Jones v. State (1970), 253 Ind. 456, 255 N.E.2d 105; Baker v. State (1964), 245 Ind. 129, 195...