Schmanski v. State, No. 878S175

Docket NºNo. 878S175
Citation385 N.E.2d 1122, 270 Ind. 331
Case DateFebruary 15, 1979
CourtSupreme Court of Indiana

Page 1122

385 N.E.2d 1122
270 Ind. 331
Terry SCHMANSKI, Appellant,
v.
STATE of Indiana, Appellee.
No. 878S175.
Supreme Court of Indiana.
Feb. 15, 1979.

Page 1123

Paul T. Cholis, South Bend, for appellant.

Theo. L. Sendak, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged with first degree murder, Ind. Code § 35-13-4-1 (Burns 1975) and convicted of the lesser included offense of second degree murder in a trial by jury. He was sentenced to imprisonment for a period of not less than fifteen (15) nor more than twenty-five (25) years. On appeal he raises the following as error:

(1) Whether there was sufficient evidence to sustain the verdict on the elements of malice and purpose.

(2) Whether the trial court erred in refusing testimony concerning the existence of a second gun.

(3) Whether the trial court erred in denying the defendant's motion for mistrial.

[270 Ind. 332] (4) Whether the trial court erred in sustaining the State's objections to questions concerning the decedent's prior convictions for assault and battery and disorderly conduct.

ISSUE I

The evidence most favorable to the State disclosed that during the evening hours of September 9, 1977, the defendant attended a beer drinking party on Pershing Street in South Bend. When the beer ran out at the party, he left, along with Donna Cox and Denny Kroll, stopping at various places to buy alcohol. Sometime after midnight the defendant and Ms. Cox drove past the scene of a second party at the request of Ms. Cox. The defendant was hesitant about stopping at the party, as he did not want to encounter Robert Crawford, the decedent's brother, who Ms. Cox knew would be there. Crawford had previously fought with one of the defendant's friends. Despite the defendant's reservations, they decided to stop at the party. The defendant and Crawford became involved in a conversation, during which time the decedent, Crawford's brother, approached the two, asked the defendant why he was "hassling" Crawford and hit the defendant in the mouth. The defendant stumbled backward, said something to the effect that he was going to kill the decedent, drew a sawed off shotgun that had been concealed in his boot and shot the decedent once, fatally wounding him. He then turned to Crawford and stated that he was going to kill him too, at which point Crawford turned and ran.

The defendant testified at trial that the decedent had aimed a dark colored gun at him prior to the shooting, however, Crawford and Ms. Cox, both witnesses to the shooting, testified that the decedent was unarmed.

The defendant does not espouse the theory of self defense on appeal, as he concedes that the jury could properly have found from the evidence that he was not acting in self defense when he shot the decedent. Rather, he contends that there was insufficient proof that he acted with purpose and malice, inasmuch as the State failed to exclude the hypothesis that he was reacting out of fear and anger, having had no time to coolly reflect upon what he was about to do. As authority for his position, the [270 Ind. 333] defendant relies solely on Shutt v. State, (1977) Ind., 367 N.E.2d 1376.

At the outset we must first note that, as in any sufficiency determination, we will neither reweigh the evidence nor will we judge the credibility of the witnesses. Beasley v. State, (1977) Ind., 370 N.E.2d 360. We will look only to that evidence most favorable to the State along with all reasonable inferences to be drawn therefrom, to determine whether such evidence and inferences would permit a reasonable trier of fact to find the existence of each of

Page 1124

the essential elements of the crime charged beyond a reasonable doubt. If so, the verdict will not be disturbed. Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d 831.

The facts in Shutt are readily distinguishable from those in the case at bar. There, we found that the inference of malice, which arose only from the defendant's use of a deadly weapon, was rebutted by unrefuted evidence...

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13 practice notes
  • State v. Tribble, No. 79-139-C
    • United States
    • United States State Supreme Court of Rhode Island
    • 29 Abril 1981
    ...277, 388 N.E.2d 1326 (1979); McKee v. State, 198 Ind. 690, 154 N.E. 372 (1926) (cited with approval in Schmanski v. State, Ind., 385 N.E.2d 1122 (1979)); State v. Mason, 208 Kan. 39, 490 P.2d 418 (1971) (only those acts resulting in convictions may be used); State v. Thibeaux, 366 So.2d 131......
  • Tinnin v. State, No. 480S117
    • United States
    • Indiana Supreme Court of Indiana
    • 5 Febrero 1981
    ...the defendant has been placed in a position of grave peril to which he should not have been subjected. Schmanski v. State, (1979) Ind., 385 N.E.2d 1122; White v. State, (1971) 257 Ind. 64, 272 N.E.2d 312. Furthermore, if a jury is admonished by the trial judge to disregard what has occurred......
  • Chapman v. State, No. 4-684A156
    • United States
    • Indiana Court of Appeals of Indiana
    • 11 Octubre 1984
    ...See McCraney v. State, (1983) Ind., 447 N.E.2d 589; French v. State, (1980) 273 Ind. 251, 403 N.E.2d 821; Schmanski v. State, (1979) 270 Ind. 331, 385 N.E.2d 1122; Bates v. State, (1971) 256 Ind. 490, 269 N.E.2d 749; McKee v. State, (1926) 198 Ind. 590, 154 N.E. 372. The State's argument em......
  • Chandler v. State, No. 980S377
    • United States
    • Indiana Supreme Court of Indiana
    • 20 Abril 1981
    ...grave peril to which he should not have been subjected. Tinnin v. State, (1981) Ind., 416 N.E.2d 116; Schmanski v. State, (1979) Ind., 385 N.E.2d 1122. We will now proceed to examine the specific instances of discovery violations. On the second day of trial during direct examination of one ......
  • Request a trial to view additional results
13 cases
  • State v. Tribble, No. 79-139-C
    • United States
    • United States State Supreme Court of Rhode Island
    • 29 Abril 1981
    ...277, 388 N.E.2d 1326 (1979); McKee v. State, 198 Ind. 690, 154 N.E. 372 (1926) (cited with approval in Schmanski v. State, Ind., 385 N.E.2d 1122 (1979)); State v. Mason, 208 Kan. 39, 490 P.2d 418 (1971) (only those acts resulting in convictions may be used); State v. Thibeaux, 366 So.2d 131......
  • Tinnin v. State, No. 480S117
    • United States
    • Indiana Supreme Court of Indiana
    • 5 Febrero 1981
    ...the defendant has been placed in a position of grave peril to which he should not have been subjected. Schmanski v. State, (1979) Ind., 385 N.E.2d 1122; White v. State, (1971) 257 Ind. 64, 272 N.E.2d 312. Furthermore, if a jury is admonished by the trial judge to disregard what has occurred......
  • Chapman v. State, No. 4-684A156
    • United States
    • Indiana Court of Appeals of Indiana
    • 11 Octubre 1984
    ...See McCraney v. State, (1983) Ind., 447 N.E.2d 589; French v. State, (1980) 273 Ind. 251, 403 N.E.2d 821; Schmanski v. State, (1979) 270 Ind. 331, 385 N.E.2d 1122; Bates v. State, (1971) 256 Ind. 490, 269 N.E.2d 749; McKee v. State, (1926) 198 Ind. 590, 154 N.E. 372. The State's argument em......
  • Chandler v. State, No. 980S377
    • United States
    • Indiana Supreme Court of Indiana
    • 20 Abril 1981
    ...grave peril to which he should not have been subjected. Tinnin v. State, (1981) Ind., 416 N.E.2d 116; Schmanski v. State, (1979) Ind., 385 N.E.2d 1122. We will now proceed to examine the specific instances of discovery violations. On the second day of trial during direct examination of one ......
  • Request a trial to view additional results

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