Shively v. State, 29460

• Citation: 141 N.E.2d 921,237 Ind. 17
• Decision Date: 09 May 1957
• Docket Number: No. 29460,29460
• Parties: Edgar Everett SHIVELY, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 921

141 N.E.2d 921

237 Ind. 17

Edgar Everett SHIVELY, Appellant, v. STATE of Indiana, Appellee.

No. 29460.

Supreme Court of Indiana.

May 9, 1957.

Rehearing Denied June 19, 1957.

Edwin K. Steers, Atty. Gen., of Indiana, Owen S. Boling, Merl M. Wall, Deputy Attys. Gen., for appellee.

BOBBITT, Judge.

Apellant was charged by affidavit with the offense of second degree murder, tried by jury, found guilty as charged, and sentenced to the Indiana State Prison for life.

Three questions are presented for our consideration.

First: Appellant contends that the court erred in overruling his objections to certain questions propounded by the State to witnesses, police officers David Jeter and Fred Whisler. Such questions call for a recital of a conversation had with appellant when the police first entered the apartment and found him on the floor wounded and in pain. Appellant asserts that the statement made by him to these policemen was in the nature of an extrajudicial confession, therefore it was error to admit such conversation in evidence before the corpus delicti had been established by independent proof.

While it is true that the corpus delicti cannot be established solely by the uncorroborated extrajudicial admission or confession of the accused, however, such admission or confession, when corroborated by other evidence, may be considered in determining whether the corpus delicti has been proven beyond a reasonable doubt. Hunt v. State, 1939, 216 Ind. 171, 178, 23 N.E.2d 681; Parker v. State, 1950, 228 Ind. 1, 8, 88 N.E.2d 556, 89 N.E.2d 442. $The evidence is undisputed that appellant called the police himself and reported the shooting; that the opened the door and admitted them to the apartment and freely and voluntarily told them what had happened.

No contention is made here that such statement or admission was not voluntarily or freely given. $The objection as shown in the motion for a new trial is: 'Defendant objects: To any conversation had between officer Jeeter and the defendant because of defendants' physical condition and defendant was in a state of shock; he didn't know to whom he was talking, and he didn't know the consequences of what he was saying.'

We find no merit to this objection, and particularly so since appellant himself called the police, let them into the apartment within five minutes of the call, and voluntarily told them what had happened. Under the circumstances here appellant's statement and admission to the police officers was clearly admissible. Ewbanks Indiana Criminal Law, Symmes Ed. § 392, p. 242.

Second: Appellant asserts that the evidence is not sufficient to sustain the verdict of the jury.

In examining the evidence to determine whether it is sufficient to sustain the conviction herein, and considering only that most favorable to the State, the record discloses that a witness for the State, who lived in the rear of the apartment occupied by the deceased herein, testified that on February 6, 1955, at about 5 p. m. appellant came to his door and asked permission to be let into the deceased's apartment, as it appears that her apartment could be entered through the room occupied by this witness. He further testified that appellant came to his door three or four times that day trying to enter the deceased'sapartment, saying that he wanted to get into her apartment because he thought she was sick. Appellant again returned about 7:30 p. m. to the witness' door and asked him to leave a message for the deceased telling her that if she didn't let him in he would break the door down because he had seen her in the kitchen window. The message was delivered by the witness to the deceased and about 10:30 p. m. he heard her let defendant into her apartment. Later he heard them quarreling.

The police came to this witness' door and awakened him between 4:15 and 4:30 on the morning of February 7, 1955. They took him into the deceased's apartment where he saw her lying face down on a couch and was not moving nor making any sound.

This witness testified that he last saw the deceased alive at about 8:30 p. m. on February 6, 1955.

A physician who was at the time a deputy coroner testified that he received a call about 4 a. m. on February 7, 1955 to go to 164 West Ninth Street. Upon entering the apartment when he arrived there, he saw the body of a woman lying on the sofa. There were two bullet wounds evident, one in the left breast and one in the upper left abdomen. This physician further testified that the woman (deceased herein) was dead, and that she had died from gunshot wounds, and that she had been dead at least two hours when he arrived.

A member of the Indianapolis Police Department testified that he and his partner received a call on their patrol car radio at about 3:45 a. m. on February 7, 1955, to go to 164 West Ninth Street and investigate a report that a man had shot his wife and himself. When they arrived at this address, looking between the door and venetian blind, he saw appellant on the floor crawling to open the door for the police to enter. Upon entering the apartment they saw appellant...