Powell v. State, 1267

• Decision Date: 02 June 1970
• Docket Number: No. 1267,1267
• Citation: 258 N.E.2d 633,254 Ind. 200,21 Ind.Dec. 455
• Parties: Willie Lee POWELL, Appellant, v. STATE of Indiana, Appellee. S 140.
• Court: Indiana Supreme Court

Page 633

258 N.E.2d 633

254 Ind. 200

Willie Lee POWELL, Appellant, v. STATE of Indiana, Appellee.

No. 1267 S 140.

Supreme Court of Indiana.

June 2, 1970.

Don R. Money, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Deputy Atty. Gen., for appellee.

JACKSON, Judge.

Appellant was charged by indictment with the crime of first degree murder; said indictment in pertinent part reads as follows, to-wit:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that WILLIE LEE POWELL on or about the 9th day of October, 1966, at and in the County of Marion and in the State of Indiana did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder ELIZAH REDMON, a human being, by then and there unlawfully, feloniously, purposely and with premeditated malice shooting at and against the body of the said ELIZAH REDMON with a gun loaded with gunpowder and metal bullets, then and there held in the hand of the said WILLIE LEE POWELL, and did then and there and thereby inflict mortal wounds in and upon the body of the said ELIZAH REDMON, of which woulds the said ELIZAH REDMON then and there sickened and languished and of which mortal wounds on the 10th day of October, 1966, at and in the County and State aforesaid, the said ELIZAH REDMON did then and there and thereby die; and so the Grand Jurors aforesaid, upon their oaths aforesaid, do say and charge that the said WILLIE LEE POWELL, in the manner and form and by the means aforesaid, unlawfully, feloniously, purposely and with premeditated malice did kill and murder the said ELIZAH REDMON, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

Trial by jury was had, beginning August 21, 1967. On August 22, 1967, the jury returned its verdict finding appellant 'guilty of Murder in the First Degree as charged in the indictment * * *.' The court thereupon ordered a presentence investigation made, the same being set for consideration on September 1, 1967. Judgment was rendered on the verdict September 1, 1967; the court, on the verdict of the jury found appellant '* * * guilty of First Degree Murder * * *' and sentenced him to the Indiana State Prison during life.

A motion for new trial was filed by appellant September 21, 1967, said motion reading in pertinent part as follows:

'Comes now the defendant in the above case and moves the court for a new trial for the following reasons:

1. That the verdict was based on surprise which ordinary prudence could not have guarded against.

2. Error of law occurring at the trial.

3. The verdict of the jury is contrary to law, and the verdict of the jury is not sustained by sufficient evidence.'

Appellant's motion for new trial was overruled September 28, 1967. Appellant's sole Assignment of Error is:

'1. That the Court erred in overruling the Appellant's Motion For A New Trial.'

From the evidence adduced at trial it appears that on the evening in question the decedent visited appellant's apartment for the purpose of obtaining assistance in getting his car started. Appellant and decedent had an argument and appellant ordered Redmon out of his apartment. Redmon left, but returned shortly thereafter. The evidence with respect to what actually happened upon decedent's return to the apartment is in conflict. Mr. Byrl Swanigan, who was present in appellant's apartment during each of Redmon's appearances, gave a statement to detective-sergeant, James Gates, after being duly advised of his constitutional rights, shortly after Gates' arrival at the scene of the crime. The substance of said statement was related to the court by Sergeant Gates. Swanigan stated that appellant and Redmon again argued upon the latter's return, and then appellant went into the kitchen and withdrew a pistol from a drawer. Redmon turned and started to walk out of the apartment when appellant fired a shot at him. While Redmon was turning around in the doorway to come back in appellant fired a second shot this time striking and fatally wounding Redmon in the head.

Appellant contends that when he ordered Redmond to leave the second time he (Redmon) did not do so, but began swearing and threatening appellant. While standing in the doorway to the apartment, approximately fifteen feet from appellant, Redmon put his hand in his pocket as if to secure a knife or other weapon. Appellant pulled a pistol out of a nearby drawer and fired one shot into the floor in front of Redmon. He then 'pulled up' to shoot again when Redmon allegedly 'broke' toward him. Appellant, fearing bodily harm fired again this time striking Redmon in the head.

On appeal, appellant raises two distinct arguments in support of his contention that his conviction below should be reversed. He argues that the evidence introduced before the trial court was wholly insufficient to sustain his conviction in that the record fails to disclose that this killing was done with a purpose and fails to disclose any malice. The rule is well settled in Indiana that a conviction will be sustained if there is any evidence of probative value of the facts essential to support the judgment. Mathews v. State (1967), 248 Ind. 563, 228 N.E.2d 1; Majko v. State (1965), 246 Ind. 506, 207 N.E.2d 212. When the question of the sufficiency of the evidence is raised, this Court will consider only that evidence most favorable to the State, together with all the reasonable inferences to be drawn therefrom, to determine whether the jury was warranted in returning a verdict of guilty. Butler v. State (1967), 249 Ind. 484, ...