Pruitt v. State, 25025.
| Decision Date | 22 June 1926 |
| Docket Number | No. 25025.,25025. |
| Citation | 198 Ind. 141,152 N.E. 830 |
| Parties | PRUITT v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Bartholomew Circuit Court; John W. Donaker, Judge.
Elmer T. Pruitt was convicted of murder in the first degree, and he appeals. Affirmed.Rynerson & Long and Spaugh & Spaugh, all of Columbus, Henry E. White, of Franklin, and Slack & Rinier and L. Ert Slack, all of Indianapolis, for appellant.
Arthur L. Gilliom, Atty. Gen., and George J. Muller, Jr., Deputy Atty. Gen., for the State.
The defendant (appellant) was charged by indictment with having unlawfully, feloniously, purposely, and with premeditated malice killed and murdered Oscar Cutsinger, at Johnson county, in the state of Indiana, on the 10th day of June, 1924, by shooting him with a revolver loaded with gunpowder and balls, and thereby inflicting a mortal wound from which he died. Defendant was tried by a jury, which returned a verdict finding him guilty of murder in the first degree and fixing his punishment at imprisonment for life, and judgment was rendered accordingly. His motion for a new trial for the alleged reasons that the verdict was not sustained by sufficient evidence, and that the trial court erred in excluding certain evidence and in giving certain instructions, was overruled, and he excepted, and has assigned that ruling as error.
[1] In determining whether or not a verdict of guilty is sustained by sufficient evidence a court to which an appeal is taken is limited to the consideration of that part of the evidence which most strongly tends to prove defendant's guilt. Jackson v. State, 194 Ind. 561, 143 N. E. 625;Wolfa v. State (Ind. Sup.) 150 N. E. 98;Faulkenburg v. State (Ind. Sup.) 151 N. E. 382.
[2][3] There was evidence: That defendant and Cutsinger, the man he killed, had disliked each other for a long time. That both kept dairies and sold milk at retail in Edinburg. That about a year before the homicide Cutsinger had been arrested and fined for an assault committed upon defendant, in that he had threatened to strike defendant with a board, and that he had caused defendant to be arrested on a charge of provoke. That on Wednesday before the Tuesday when the homicide was committed defendant had told the town marshal of his dissatisfaction over Cutsinger having rented some pasture land which defendant had expected to get, and at that time had said “G- d- him; I'll get him”; which expression he had repeated three or four times. That a few days before the homicide a calf belonging to defendant had escaped from his field, and Cutsinger had caused a notice to be printed in the local newspaper stating that the calf had been taken up as an estray, and the owner could have it by paying for its feed and the cost of publishing the notice. That defendant had seen the notice on the evening before the homicide. That at 8 o'clock on the morning of June 10, 1924, defendant had stopped his milk wagon on a street in the town of Edinburg to deliver some milk, and was fixing the milk bottles in the wagon, when Cutsinger came up the street in his “machine,” and defendant held up his hand to stop him. That defendant and Cutsinger then had a conversation, in which Cutsinger said that defendant “could have it if he paid for the ad and the fee,” which he said would amount to $3.50, when defendant said “Go on, I am through with you”; and Cutsinger started his car. That defendant ran alongside the car as it started, striking three times with his hand, and struck Cutsinger on the shoulder, when Cutsinger stopped and got out and went behind the car. That in the conversation which followed defendant spoke loud and angrily and told Cutsinger to “Take your hands out of your pockets, d- you, you have a gun”; when Cutsinger replied, “I have neither a gun nor a knife.” That a young woman who knew them both called to them from an upstairs window not to quarrel, and told Cutsinger to go on down town, when he turned with “a half smile” and said, “All right, Ruth,” and started toward his car. That defendant then said something to him, when Cutsinger turned back and with his hands on his hips slowly took two steps toward defendant. That defendant said to him. “Wait a minute; I want to tell you something,” and then fired a shot which struck Cutsinger in the abdomen and lodged in the muscles of his back, when he caught at his waistline with his hand and fell forward on his face. Different witnesses gave the distance between them as from 6 or 8 feet up to 30 feet at the time the first shot was fired, but all agreed that an appreciable time elapsed before any other shots were heard, and that after Cutsinger had fallen on his face defendant walked over to him and fired two shots into the back of his head. That one of these shots entered behind the right ear and lodged just back of the left eye and caused instant death. That Cutsinger was unarmed, having nothing in his pockets but some milk checks and a small pocket knife. That as defendant started away a woman with whom he was acquainted said to him, “Babe, what made you do that?” and he answered, “He has always been looking for trouble, and now he has it”; and as defendant crossed the yard of another woman who had seen the first shot fired and had heard the other two shots he said, “D- him; I told him I would get him.” Defendant testified that he had bought the revolver with which he shot Cutsinger almost a year beforehe did the shooting, and within two or three weeks...
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