Parker v. State

• Decision Date: 09 October 1925
• Docket Number: No. 24765.,24765.
• Citation: 196 Ind. 534,149 N.E. 59
• Parties: PARKER v. STATE.
• Court: Indiana Supreme Court

196 Ind. 534

149 N.E. 59

PARKER

v.STATE.

No. 24765.

Supreme Court of Indiana.

Oct. 9, 1925.

Appeal from Circuit Court, Vigo County; John P. Jeffries, Judge.

Joseph Parker was convicted of murder in an attempt to rob, and he appeals. Reversed, and new trial granted.

Henry W. Moore, James P. Stunkard, and Victor O'Donnell, all of Terre Haute, for appellant.

A. L. Gilliom, of Indianapolis, for the State.

EWBANK, J.

Appellant and another were charged by indictment with the crime of murder in an attempt to rob. At that time, appellant had been convicted and sentenced to imprisonment for a long term of years for a robbery committed in Missouri, and also for another robbery committed in Indiana, and he admitted, on cross-examination, that he had participated in a third robbery in Illinois. But he denied that he was present or had any part in the attempt to rob a filling station in Terre Haute at the time the murder was committed for which he was on trial. He was found guilty, and was sentenced to death. Overruling his motion to quash the indictment for the alleged reason that it does not state facts sufficient to constitute a public offense, and overruling his motion for a new trial, are assigned as errors.

[1] The indictment alleges that the defendants, at a designated time and place, “did then and there unlawfully and feloniously kill and murder one Steven Kendall in the attempt to perpetrate a robbery, by then and there forcibly, feloniously, and purposely shooting at and against and thereby mortally wounding the said Steven Kendall with a certain deadly weapon called a revolver, then and there loaded with gunpowder and leaden balls, which said revolver they (naming them) then and there had and held in their hands, and did then and there forcibly, feloniously, and by violence, and by putting Harry Esthan in fear, attempt to take from the person and presence of said Harry Esthan the sum of $50 in money, of the value of $50, of the personal property of the Sho-Me-Oil Company, a corporation, from the effects and results of such shooting and mortally wounding so, as aforesaid done by said (defendants) with the said gun, he, the said Steven Kendall then and there instantly died, contrary,” etc. This indictment certainly is not a model to be followed. The fact that the killing was done in the alleged attempt to rob might be, and ought to be, charged more clearly and more directly. But since it contains the averments that defendants did “feloniously kill and murder” the deceased in an attempt to perpetrate a robbery, by “feloniously and purposely” inflicting a mortal wound in the manner and by the means alleged, “and did then and there” attempt to commit the robbery as described, we have concluded that it sufficiently informed the accused of the nature and cause of the accusation against him, and stated facts constituting the public offense of felonious homicide with such a degree of certainty that judgment could be pronounced according to the right of the case. The charge that defendants “feloniously” killed and murdered the deceased amounted to an averment that the offense was purposely committed, with criminal intent. Carder v. State, 17 Ind. 307;Hamilton v. State, 142 Ind. 276, 277, 41 N. E. 588.

And these averments, together with the charge that at the same time and place defendants attempted to rob Esthan of money belonging to the Sho-Me-Oil Company and killed Steven Kendall in the attempt to perpetrate a robbery, make it sufficient as against the objection stated in the motion to quash, and no question is presented as to its sufficiency in any other respect.

[2] The first witness called by the state was the boy jointly indicted with appellant under the name of Edward Barber, but who said that his right name was Arthur Smith. He testified that he was in Terre Haute on January 23, 1924, the day that Kendall was shot, but that appellant was not with him and did not participate in the attempted robbery of the She-Me-Oil Company on that date, and that he was not then acquainted with appellant. A statement in writing of nearly 500 words was then shown to him which purported to recite a long series of acts done by himself and appellant on January 22d and 23d, and of other acts done and statements made by the witness in company with certain detectives on March 21, 1924 (nearly two months later) when appellant was not present; and he was asked if he made that statement, when he answered that he did. Over an exception by appellant, the prosecuting attorney was then permitted to read the statement to the witness, in the presence of the jury, and to repeat the question whether or not he made that statement, when he again said that he did, but in answer to another question said that the statement was not true. The witness was then shown another statement in writing of nearly 700 words, bearing his signature and purporting to recite a series of acts done by himself and appellant during a period of seven days, from the 21st to the 27th of January, 1924, with what the witness and a third person did for “about a week” after the time when he said they separated from appellant, on January 27th, which statement was read to him as part of a question whether or not he made such statement; and over an objection and exception by appellant the witness was permitted to answer that he did. In answer to a series of questions, the witness then testified that he had repeatedly made statements that appellant was in Terre Haute on January 23, 1924, and had stated that appellant assisted in the attempt to rob the Sho-Me-Oil station, in which Kendall was killed, but that the statement about appellant was not true; and that although admitting that he (the...