Noelke v. State

• Citation: 15 N.E.2d 950,214 Ind. 427
• Decision Date: 07 July 1938
• Docket Number: 27045.
• Parties: NOELKE v. STATE.
• Court: Supreme Court of Indiana

15 N.E.2d 950

214 Ind. 427

NOELKE v. STATE.

No. 27045.

Supreme Court of Indiana

July 7, 1938

Appeal from Vanderburgh Circuit Court; John W. Spencer, Jr. judge.

Edward Crabtree, of Evansville, for appellant.

Omer S. Jackson, Atty. Gen., and Glenn L. Steckley, Dep. Atty Gen., for the State.

ROLL Judge.

Appellant was prosecuted by a grand jury indictment charging appellant with the crime of murder in the first degree. To this indictment appellant entered a plea of not guilty, and also filed a plea of insanity. The cause was tried by a jury who returned a verdict on the 10th day of November 1937, finding the appellant guilty of murder in the first degree as charged in the indictment and that he suffer death.

Appellant's motion for a new trial was overruled, which ruling is the only error assigned on appeal. In order to properly understand the questions presented by appellant's brief we deem it advisable to state briefly the facts as disclosed by the record. An epitome of the confession of appellant which was designated as state exhibit number two and introduced at the trial without objections, cover the salient facts in this case. Appellant was charged with the murder of his eighteen months old daughter, Rita Jo Noelke.

Appellant was the husband of Hazel Noelke who was, at the time of the alleged crime, twenty-nine years of age, and that Rita Jo Noelke was the eighteen months old daughter of appellant and Hazel Noelke.

Appellant lived with his wife and daughter in the town of Boonville Indiana, and on the evening of August 28th, 1937, appellant and his wife and daughter went to the city of Evansville, to visit the Mother of appellant who lived at 522 Hess Avenue in the city of Evansville. They remained in the home of appellant's Mother that night and on the morning of August 29th, appellant left his Mother's home and went to church. He returned from church and then took a ride but would not permit his wife to accompany him on this ride. Some words passed between appellant and his wife at this time. Appellant returned to his Mother's home about 11:45 A. M. as he had been instructed to do. He ate dinner at the home of his Mother and immediately went into the back yard. Several witnesses testified that when appellant returned for dinner he had been drinking. Appellant's statement is to the effect that when he sat down in the back yard after the noon meal he dozed off to sleep. Appellant's wife desired to attend the circus in the afternoon with Mr. and Mrs. William Plump a brother-in-law of appellant who lived at 522 Hess Avenue. Appellant objected to her going to the circus and told his wife that they had to return to Boonville as their landlord intended to install a sink in the house and appellant had promised to meet him there. Whereupon appellant's wife stated, that she wanted to take a ride and go to the circus. Using appellant's own words: 'One word brought on another and I became mad. I went to my car parked in the rear of the yard, reached into the left front pocket of the car and obtained a German Lueger which I kept there. I returned to where my wife was in the yard. She was holding the baby in her left arm. When I reached a distance of about ten feet of my wife I made a number of remarks in a fit of anger, one of which was 'well, I am going to put you out of the way as I can't stand this any longer'. I then began firing the gun some nine times directly at my wife and child. She fell to the ground will the baby in her arms. I then realized that I had made a mistake and tossed the gun towards the car. I immediately raised her head and tried to make her comfortable. I later put the gun on the running board of the car and when police arrived I informed them where the gun was. The police took my wife and child to the hospital.' Rita Jo Noelke died immediately after reaching the hospital. Hazel Noelke died the following day as a result of the gun shot wounds inflicted by appellant.

The first proposition discussed by appellant in his brief relates to instruction number seventeen which is as follows:

'Instruction No. 17. If you find from all the evidence that the defendant purposely and with premeditated malice shot at Hazel Noelke, and if you further find that Rita Jo Noelke was killed thereby through being in the path of the bullets fired at Hazel Noelke by the defendant, then and in that event the purpose, intent and premeditated malice existing toward Hazel Noelke is transferred toward Rita Jo Noelke by virtue of the act itself.

'In other words one who attempts to kill another under circumstances amounting to first degree murder, also commits murder in the first degree if some other person is caught in the line of fire and killed thereby. Vanderburgh Circuit Court, Filed Nov 10 1937 Val A. Dietsch Clerk.'

Appellant says that by this instruction the jury was directed and permitted to find appellant guilty of murder in the first degree without proof of premeditated malice beyond a reasonable doubt, but it will be noted that by this instruction the court was not instructing the jury on the question of reasonable doubt. He was attempting to state and tell the jury that if they find from the evidence that the defendant purposely and with premeditated malice shot at Hazel Noelke and that Rita Jo Noelke was killed by being in the path of the bullet aimed at Hazel Noelke the intent and premeditated malice existing against Hazel Noelke would be transferred to Rita Jo Noelke, and if the killing of Hazel Noelke was under circumstances that amounted to first degree murder the killing of Rita Jo Noelke would also amount to first degree murder. This, we think is the correct statement of the law.

Where a defendant kills one person while attempting and intending with premeditated malice to kill another the material elements of the offense which must be proven beyond a reasonable doubt are:

a. That there was premeditated malice and purpose to kill the intended victim.

b. That, in carrying out, or attempting to carry out, the offense against the intended victim the actual victim was slain by the defendant, such a killing is murder. If the circumstances would have made it first degree murder had the intended person actually been slain it would still be murder in the first degree for the reason that the law transfers the previous felonious intent from the intended victim to the one actually killed. Wharton on Homicide, section 89, page 108. See Wharton's Criminal Law, 12th edition, volume 1, section 442; Brown v. State, 147 Ind. 28, 46 N.E. 34; Lloyd v. State, 206 Ind. 359, 189 N.E. 406, and State v. Carpio, 27 N.M. 265, 199 P. 1012, 18 A.L.R. 914; Walker v. State, 8 Ind. 290, and cases cited.

It will also be noted that the court by instructions numbers 8, 9, 10 and 11 fully instructed the jury upon the question of reasonable doubt, the burden of proof and the presumptions of innocence. It is quite clear in our judgment that instruction number 17 is a proper statement of the law and that appellant's rights were in no way prejudiced by this instruction.

Appellant's second proposition relates to instruction number 27 which in part reads as follows:

'If after hearing the evidence, the argument of counsel and instructions of the court you are convinced beyond a reasonable doubt of the guilt of the defendant of the offense of murder in the first degree as charged in the indictment, and if you entertain no reasonable doubt of the soundness of mind of the defendant as defined in these instructions at the time the alleged offense occurred, then you must direct the punishment to be suffered by the defendant and you may say by your verdict;

'We, the jury find the defendant guilty of murder in the first degree as charged in the indictment herein and that he suffer death * * *.' Appellant contends that by this instruction the burden of proving the unsoundness of mind beyond a reasonable doubt was placed upon appellant and permitted the appellant to be found guilty of the offense charged when the jury had no reasonable doubt of the soundness of appellant's mind.

The burden was upon the state to prove under the plea filed in this case, the sanity of appellant beyond a reasonable doubt and the jury must find that appellant was of sound mind at the time of the commission of...