Schlegel v. State

• Decision Date: 15 May 1958
• Docket Number: No. 29564,29564
• Citation: Schlegel v. State, 150 N.E.2d 563, 238 Ind. 374 (Ind. 1958)
• Parties: Chester SCHLEGEL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 563

150 N.E.2d 563

238 Ind. 374

Chester SCHLEGEL, Appellant, v. STATE of Indiana, Appellee.

No. 29564.

Supreme Court of Indiana.

May 15, 1958.

Clarence E. Benadum, Muncie, Orville A. Pursley, Hartford City, for appellant.

Edwin K. Steers, Atty. Gen., Merl M. Wall, Deputy Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant was charged by indictment with murder in the second degree under Acts 1905, ch. 169, § 350, p. 584, being § 10-3404, Burns' 1956 Replacement, tried by jury, convicted as charged and sentenced to life imprisonment in the Indiana State Prison.

Three questions are here presented for our consideration.

First: Appellant asserts that there is no evidence to establish the corpus delicti.

'Proof of the 'corpus delicti' means proof that the specific crime charged has actually been committed by someone.' Parker v. State, 1950, 228 Ind. 1, 6, 88 N.E.2d 556, 557, 89 N.E.2d 442; Dennis v. State, 1952, 230 Ind. 210, 216, 102 N.E.2d 650.

The coroner of Blackford County, Indiana, where the alleged crime was committed, testified that he was called on May 2, 1956, to go to the J & K Gravel Pit, a mile south of Royerton, Indiana, on State Road 3, where he saw two men in a boat searching for something on the bottom of the gravel pit; that these men found a two-toned brown Chevrolet automobile in which were two bodies--a man clothed in overalls, jacket, and a pair of high top shoes, and a woman clothed in a nightgown; and that these bodies were taken to Ball Memorial Hospital at Muncie, Indiana, where they were identified by appellant as being the bodies of Darrel Spade and his wife, Mary Spade. This witness further testified that he was present when an autopsy was performed and that he observed a gunshot wound behind the right ear on Darrel Spade's skull, and that there was something that smelled like burned gun powder and searing around the wound; and, further, that deceased's jacket had been perforated and has suspender on the left side severed.

A physician and pathologist at Ball Memorial Hospital at Muncie testified that he was requested to perform an autopsy on Darrel and Mary Spade, and that he found wounds on Darrel Spade's left shoulder and neck and that his death was caused by 'a shot that traversed his neck.'

We believe this evidence is sufficient to show that the crime charged in the indictment herein was actually committed by some one.

Second: Appellant further asserts that the verdict is contrary to law because the evidence was insufficient to show that the shooting was done purposely and maliciously.

'* * * intent and purpose to kill may be inferred from the deliberate use of a deadly weapon in a manner calculated to produce death' and malice may be inferred from the use of the shotgun which caused the death as charged in the indictment herein. Pitts v. State, 1939, 216 Ind. 168, 170, 171, 23 N.E.2d 673; Myles v. State, 1955, 234 Ind. 129, 133, 124 N.E.2d 205.

There is substantial evidence in the record from which the jury could have found that the mortal wound was inflicted upon the deceased Spade by a deadly weapon in the hands of appellant, and from this malice and intent could have been inferred.

Third: Appellant further asserts that at the time he fired the shots he had reasonable cause to believe that he was in great danger of receiving bodily harm or losing his life, and that he shot appellant in self-defense.

'Whether or not appellant herein shot and killed the deceased in selfdefense was an ultimate fact solely for the determination of the jury from the evidence in this case.' Bange v. State, Ind.1958, 146 N.E.2d 811, 812. See also Myles v. State, supra, at page 133 of 234 Ind., at page 207 of 124 N.E.2 d.

If the verdict herein is supported by substantial evidence of probative value it will not be disturbed on appeal.

There is evidence in the record from which the jury could have found that appellant lived with Darrel and Mary Spade, his brother-in-law and sister, on their farm; that on the night of April 24, 1956 appellant returned to the farm about 9:30 p. m.; that when he backed into the farm yard he saw what he thought was the deceased Darrel Spade 'striking at an object' on the ground which he later learned was his sister Mary; that appellant walked toward Spade yelling at him, whereupon the deceased started toward appellant 'yelling,' 'You're next;' and that appellant started running toward the northwest corner of the barn. The deceased then 'stopped what he was doing' and started after appellant, and as he (appellant) 'rounded the northwest corner of the barn,' the doors to the entrance to the corn crib were open and he dodged behind the corn sheller which was sitting in the entrance to the corn crib.

A State police detective testified, as a witness for the State, concerning a conversation which he had with appellant in the presence of a deputy sheriff at the Spade home on May 2, 1956, in pertinent part, as follows:

'Q. Officer Warnock, I believe your last testimony was the defendant told you that he ran into this corn crib there behind the corn sheller displayed to the jury by the photograph. You may continue with your questioning or statements made to you by the defendant on that particular day. A. While Chester was crouched behind the corn sheller he told us Darrel went by the open door, went on over to the main barn doors at the north end of the barn.

'Q. Step forward and point that out for the Court and Jury. A. (Pointing to the large sliding doors of the barn) These doors here, where he entered the barn, turned on the lights. Chester said while he was in there he heard him say, 'I am going to the house and get a gun and kill you.' After that he turned the light off, returned outside and was coming back past the open door where the corn sheller was located and at that point when he went by the open doors and was beyond that, Chester said that he evidently rolled on a corn cob or an ear of corn as it made a noise Darrel glanced back, at that time he stepped out in a crouched position and fired the shot gun at Darrel striking him in the upper left shoulder knocking him down.

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'A. He told us as Darrel moved by this door (pointing) he evidently stepped on an ear of corn that moved and that attracted Darrel's attention at that time Chester stepped out from behind the corn sheller, shot Darrel as he was evidently in this position here, knocking him down.

'Q. Did the defendant tell you where the decedent, Darrel Spade, fell on the ground in relation to the northwest corner of this farm? A. He told us fell forward.

'Q. Which would be to the west? A. Yes and fell with his hand under his face sorta to the side his head was to the side and Chester evidently stepped out a little further he told us Darrel was still mumbling something about going to the house to get a gun and Chester said at that time he placed the gun at Darrel's head and fired again.'

The deputy sheriff who was present during the conversation above mentioned also testified as a witness for the State concerning this conversation, in pertinent part, as follows:

'Q. Relate next what the defendant told you. A. He said that Darrel started after him from this spot up here by the buildings towards him and Chester went into the barn behind the corn sheller and he said Darrel went on past here into the other barn that he said something while he was in there like he would find him and get a gun. He said Darrel then turned and came past him and said, 'I am going to the house and get a gun and kill you' as he went past Chester had already picked up the shot gun it was laying there on some boards on the east side and when Darrel--he was still talking--when he went past--Chester told us his foot rolled on a corn cob or an ear of corn and Darrel glanced in like this to see him and that is when he stepped out and shot him.

'Q. Did Chester at that time say anything about Darrel turning the light on in the barn? A. No, I don't remember that.

'Q. Did he, at that time, describe how he shot him? A. He shot him first time and he said he fell and he loaded up the gun and stepped over him and shot him again and when after he shot him he set the gun up and run up to where Mary was.'

Appellant testified, on cross-examination, relative to the circumstances covered by the conversation above mentioned, as follows:

'Q. He made some statements in the barn in addition to his curse words did he not? A. He did make some.

'Q. Tell the Court and Jury those statements. A. As I recall he said something about going to the house and getting a gun and killing me. I couldn't say for sure if he said he was going to the house. He said he was going to get a gun.

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'Q. Chester when you fired the first time what did Darrel do? A. Well, then is when he said he would get a gun and kill me. I don't think he--he might have used one or two swear words when he said it but I couldn't say for sure that was after I shot the first time I didn't think I hit him.

'Q. Where were you when you fired that first shot with reference to being inside or outside of the corn crib? A. I was inside the corn crib.

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'Q. You told me prior to our recess you fired both shots at Darrel Spade while you were in the corn crib did I understand you correctly? A. I didn't say that, that's wrong.

'Q. Then you just tell me whether both shots were fired inside the corn crib or were they not? A. The second shot was fired when I was running at him.

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'Q. Then you indicate for the Jury the position that Darrel Spade was in at the time you fired the first blast. A. As far as I know he was standing right here. Here is the opening of the corn crib I would say he was standing 2 or 3 feet from the barn and he had the mattock in his hand and when the corn started to roll he raised the mattock and turned like that and I fired.

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'Q. Now, Chester, I don't mind if you would take the stand again. Now the first shot was...