Rariden v. State, 29929
| Decision Date | 06 November 1961 |
| Docket Number | No. 29929,29929 |
| Citation | 177 N.E.2d 736,242 Ind. 689 |
| Parties | George RARIDEN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Frank A. Symmes, Charles W. Symmes, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., Richard M. Givan, Asst. Atty. Gen., Richard C. Johnson, Deputy Atty. Gen., for appellee.
This is an appeal from a conviction of first degree murder and a sentence of life imprisonment rendered by the Jackson Circuit Court on September 28, 1959, following the return of the jury's verdict on September 23, 1959.
Appellant was indicted by the grand jury of Lawrence County, Indiana, on November 6, 1958, for murder in the first degree of one Bert Butler. By change of venue filed by appellant the cause was sent to Jackson County, Indiana, and cause submitted to trial by jury starting September 14, 1959. After his conviction and sentence, appellant filed a written motion for a new trial on October 21, 1959, which motion was overruled on January 5, 1960, and an appeal was duly perfected in this court on March 30, 1960.
The indictment, based on Acts 1941, ch. 148, § 1, p. 447, being § 10-3401 Burns' 1956 Replacement, in pertinent part reads as follows:
To the indictment the appellant filed a motion to quash, which in pertinent part reads as follows:
Appellant's motion to quash was overruled on November 20, 1958.
After the trial and conviction appellant filed his motion for a new trial; such motion for a new trial contained thirty-four specifications and of necessity will have to be dealt with here very briefly.
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The remaining specifications 20 through 34, related to the ruling of the court in sustaining objections to the questions asked by the defendant on cross-examination of State's witnesses, and the overruling of defendant's objections to questions asked the State's witnesses on cross-examination. Such of these specifications as we deem necessary for a determination of the issues in this cause will be discussed hereafter.
The appellant appeared as a witness in his own behalf and testified to the events leading up to the killing. In substance the testimony of the appellant was to the effect that on the afternoon of October 20, 1958, someone fired several shots on his farm which stampeded his cattle. That he, at that time, was preparing to go to the bank at Bedford and to visit his mother; that he had on his person a check payable to his wife in the sum of approximately $10,000 which had been indorsed and which he intended to deposit in the bank. That among other things he had placed a pistol in his car preparatory to going into town. That when he heard the shots he went out to the woods to see who was there and on arriving at the woods saw an individual whom he identified as the deceased, yelled at him, and that that person fired several shots into the limbs over his head and then ran off. Appellant returned to his home, got into his car and drove to the home of the decedent, finding that the decedent was not at home, waited in his car until the decedent appeared walking towards his house carrying a rifle. The appellant and decedent got into an altercation over the events occurring on appellant's farm. The decedent was standing by the side of the car and appellant claims that decedent first struck him on the arm with the butt of the rifle, then attempted to reverse the same, at which time appellant grabbed the rifle, decedent stood back and appellant thought that he was preparing to shoot him. Appellant then fired one shot with the revolver, striking decedent and causing him to fall to the ground. Appellant further testifies that he went to the home of a neighbor, immediately after the shooting and before leaving the premises in his car, told the neighbor that he had better call the doctor and the decedent's wife as he had been compelled to shoot him. On being asked as to how badly injured the decedent was, appellant stated that he thought he was not very badly hurt, but that someone should do something for him. Appellant then drove back to his home, got his wife, and they drove to the home of appellant's mother in the town of Bedford where appellant was later arrested.
The State's evidence was to the effect that about 5:40 P.M. on the afternoon of October 20, 1958, Zelbert Hawkins, then Sheriff of Lawrence County, was called to the home of Bert Butler located some four or five miles from Bedford near the town of Eureka on State Road No. 158. The Sheriff and the Coroner, one Dr. Wynn, proceeded to the Butler home. On arrival they found Butler lying face down on the lawn in front of his house, about two or three feet from the road. Dr. Wynn examined the body and declared that Butler was dead. Pathological examination showed that death was caused by a bullet which entered the left side of deceased's body and passed through his heart. The bullet removed from the body of decedent was identified as a 32 caliber full jacketed bullet. Next to the body of the deceased was a 22 caliber rifle.
Bert Butler's widow testified that he returned from work a few minutes past 3:00 o'clock on the afternoon of the 20th, and that he left the house about 15 minutes later taking with him his 22 caliber rifle. The next time she saw her husband he was lying dead on the front lawn near the road.
James Quackenbush testifying for the State stated that he lived five miles west of Bedford on the Tripleton Road; that appellant came to his home at about 5:20 P.M. on October 20, 1958, and stated that it had been necessary for him to run Butler off of his farm that afternoon, but that he did not catch him. Appellant then got into his car and drove to Butler's home where he awaited his arrival. That when Butler returned and he remonstrated with him about hunting on his farm, Butler hit him on the arm with the butt of his gun he was carrying. The witness then testified that appellant told him that Butler turned around to shoot and that appellant grabbed the gun which went off, and that at this point appellant shot Butler with the revolver.
Lula Quackenbush, wife of the witness, James Quackenbush, testified substantially to the same facts as her husband.
Grady Kee also testifying for the State, testified that he was the deceased's next door neighbor, that he saw Butler standing near the road in front of Butler's house, that Butler was at the top of the slope in the yard at the time, and there was a car parked just off the road adjacent to where Butler was standing. He then walked to the back of his house, then returned to where he could see Butler and the car, then again went to the back of the house where he heard a blast. The witness was engaged in changing his clothes and only investigated after talking to his wife. On going to Butler's yard he found his body, and while bending down to feel if Butler had any pulse, discovered the 22 rifle. He testified that he picked up the rifle, examined it, and then placed it beside Butler's feet.
Margie Kee, wife of Grady Kee, also testified for the State, her testimony being that while sitting in her front room she heard two voices and a blast. She states that one of the voices was loud and angry and that she had not previously heard this voice. Shortly after the blast, while watching out her picture window, she remembered seeing a car pass by the front of her house. She could not describe the car other than noticing that it was not black. She testified that she had a phone call from James Quackenbush four or five minutes after hearing the blast, and that she investigated and saw Butler's body lying on his property in front of his home.
James Canada testified for the State that he saw appellant sitting in his two tone green car by Mr. Ikerd's farm between 5:15 and 5:30 P.M. on the evening of October 20th. He further stated that he saw Butler nearing his property at that time and that Butler was carrying a rifle.
Several other witnesses including Mildred Knight, Genieve Quackenbush and Winifred Quackenbush stated that they had seen the deceased that afternoon and that at that time he was carrying a gun.
Edward East, a boy 14 years of age, at the time of the trial, testified that on the evening of the 20th of October, 1958, he saw Bert Butler crossing the drive-way to the East home going towards Butler's yard, that at that time a car pulled up in front of the Butler premises and stopped next to Butler who then...
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