Shutt v. State

• Decision Date: 21 October 1977
• Docket Number: No. 1076S358,1076S358
• Citation: 367 N.E.2d 1376,267 Ind. 110
• Parties: Michael E. SHUTT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1376

367 N.E.2d 1376

267 Ind. 110

Michael E. SHUTT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1076S358.

Supreme Court of Indiana.

Oct. 21, 1977.

[267 Ind. 111] John C. Bunner, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant), a seventeen year old boy, was charged with second degree murder, Ind. Code (Burns 1975) 35-1-54-1, convicted of that offense in a trial by jury and sentenced to imprisonment for an indeterminate term of fifteen to twenty-five years. That the defendant killed the deceased is not in dispute. Two issues are presented on this direct appeal.

(1) Propriety, under the evidence, of an instruction advising that one who has no reasonable grounds for apprehension may not successfully interpose the defense of self defense.

(2) Sufficiency of the evidence, as to the essential element of malice.

ISSUE I

It is the defendant's position, upon this issue, that there was no evidence that the defendant was not acting in self defense and that, therefore, the following quoted portion of the instruction on self defense was inapplicable and served only to disparage the self defense claim. The instruction was lengthy and appears to have advised fully upon the principles involved and concluded with the following statement:

"One who is in no apparent danger and who has no reasonable grounds for such apprehension cannot kill another and successfully interpose the defense of self-defense."

Although there was no evidence directly controverting the evidence that the defendant had been threatened and that he was in fear, whether or not his apprehension of danger was reasonable was, nevertheless, a question of fact. We disagree with the defendant's statement that there is no evidence in the record from which one could say that he had no reasonable grounds for apprehension. Although there was no direct evidence to disprove his claimed mental state, whether or not it, in fact, existed and whether or not it was reasonable, if it did exist, had to be determined by the jury from all of the evidence. The defendant has cited Dipert v. State (1972), 259 Ind. 260, 286 N.E.2d 405, and Huddleston v. State (1973), 260 Ind. 398, 295 N.E.2d 812, wherein we reversed because the instruction relating to the defense of insanity strongly suggested, in each case, that the defense might be a ruse and that the evidence thereof should, therefore, have particular scrutiny.

The portion of the instruction complained of may have been an unnecessary appendage, as it simply restated, in negative terms, what had already been said in the affirmative, apparently for the purpose of emphasizing the requirement of reasonableness. However, we see no disparaging tenor to it. It was a correct statement of the law and was applicable under the totality of the evidence.

ISSUE II

The variances in the testimony are but slight. The issue is whether or not the essential element of malice could be found therefrom, beyond a reasonable doubt. We are governed by several precepts which are sometimes difficult to harmonize. First, we must recognize the basic premise of appellate review:

"When the sufficiency of the evidence is raised as an issue upon appeal, this Court will consider only that evidence of probative value most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. If such evidence and inferences would permit a reasonable trier of fact to find the existence of each element of the crime charged beyond a reasonable doubt, the verdict will not be disturbed." Baum v. State (1976), Ind., 345 N.E.2d 831 at 834, 835, and cases there cited.

"As this Court has repeatedly emphasized, it will not on appeal judge the weight of the evidence or the credibility of the witnesses. Lottie v. State (1974), 262 Ind. 124, 311 N.E.2d 800; Brown v. State (1974), 261 Ind. 619, 308 N.E.2d 699; Turner v. State (1972), 259 Ind. 344, 287 N.E.2d 339; Gibson v. State (1971), 257 Ind. 23, 271 N.E.2d 706; Fuller v. State (1971), 256 Ind. 681, 271 N.E.2d 720." Rosell v. State (1976), Ind., 352 N.E.2d 750, 751.

Secondly, in our review, we must also accommodate for possible unreasonableness of the fact finder's verdict, otherwise our review would be but a sham and a useless exercise in futility. If the inference drawn by the trier of facts must rest upon speculation or conjecture, it cannot be drawn beyond a reasonable doubt, and we are required to set it aside. "It is not enough to sustain a conviction that the evidence, when given full faith and credit, may warrant a suspicion or amount to a scintilla." Baker v. State (1956), 236 Ind. 55, 60, 138 N.E.2d 641, 644.

Although it is not disputed that the defendant killed the deceased, the element of malice which is essential to the validity of the verdict, was in issue and, by its nature, could be proved only by circumstantial evidence. In Manlove v. State (1968), 250 Ind. 70, 232 N.E.2d 874, on rehearing 250 Ind. 85, 235 N.E.2d 62, we clarified the prerogative and responsibility of this Court upon a claim that the verdict is not sustained by sufficient evidence. Justice Hunter, writing for an unanimous court, articulated it as follows:

"Therefore on the matter of sufficiency of the evidence in the case before this Court we must determine whether there was adequate and substantial circumstantial evidence from which the jury could have drawn a reasonable inference of the appellant's guilt. In so doing we are only exercising the duty and responsibility of a court of review, and while we may not weigh the evidence we must pass upon its sufficiency as a matter of law. Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641; Christen v. State, supra (228 Ind. 30, 89 N.E.2d 445); Howard v. State (1921), 191 Ind. 232, 131 N.E. 403 and other cases too numerous to cite. There must be substantial evidence to support the verdict on each essential element of the crime charged. If there is not such evidence in support of the verdict, then it becomes an error at law which may be reviewed and corrected on appeal. Howard v. State, supra; Baker v. State, supra. Likewise, in passing upon the sufficiency of the evidence where it is wholly circumstantial in character, this Court will, in the event an essential element is lacking, hold the evidence to be insufficient and the verdict contrary to law." 250 Ind. at 77, 78, 232 N.E.2d at 878.

"Thus it is clear that where evidence is wholly circumstantial and fails to exclude every reasonable hypothesis of innocence such evidence is not sufficiently persuasive to allow a reasonable man to find the accused guilty beyond a reasonable doubt and such a finding and judgment of guilty cannot stand. Osbon v. State (1938), 213 Ind. 413, 13 N.E.2d 223; McAdams v. State (1948), 226 Ind. 403, 81 N.E.2d 671 and cases cited therein. To the extent the language in Christen v. State, supra, indicates this Court cannot pass upon the question of whether wholly circumstantial evidence excludes every reasonable hypothesis of innocence, such language is disapproved. For if the jury is bound to follow such a guideline in reaching its verdict, (and this Court has so stated the rule time and again, and trial courts have so instructed juries in Indiana for more than a century) then this Court must have the authority and duty on review to determine whether that guideline has been adhered to. If such is not the province and duty of this Court on appeal, then the jury's conduct in that respect would be immune to any judicial review and the right of appeal on the question of the sufficiency of circumstantial evidence would be an impotent and useless procedural rule." 250 Ind. at 79, 80, 232 N.E.2d at 879.

Thirdly, it is settled that malice may be inferred from the intentional use of a deadly weapon in such a manner as is likely to cause death. Dobbs v. State (1957), 237 Ind. 119, 143 N.E.2d 99; Martin v. State (1957), 236 Ind. 504, 141 N.E.2d 455.

However, such inference may be rebutted. Dickinson v. State (1944), 222 Ind. 551, 55 N.E.2d 325; Landreth v. State (1930), 201 Ind. 691, 171 N.E. 192.

We believe the facts of this case can only justify a conviction for voluntary manslaughter, and that the inference of malice said to arise from the circumstance of the defendant's use of a knife could not, under all the circumstances, have excluded every reasonable hypothesis of innocence. It, therefore, was not sufficiently persuasive to allow a reasonable man to find the defendant guilty of second degree murder beyond a reasonable doubt.

THE EVIDENCE

For other purposes the evidence presented in this case could be briefly summarized. A reversal for insufficiency of the evidence, however, necessitates a presentation of the evidence in considerable detail, lest evidence be overlooked which, if presented, would have provided the essential missing link. We find it necessary, therefore, to burden this opinion with an unusually lengthy recitation of the testimony.

State's witness, Russell Davis, age fifteen, testified that he had known the defendant for about ten years and that they frequented the pool hall together where the fatal encounter had occurred. The witness did not know the decedent, Dave Green, and had not seen him previously. When Russell arrived at the pool hall at about 5:00 p.m., the defendant was playing pool with another friend, Roy Durham. A third friend, David Braden, was waiting to play the winner. About half-an-hour later, the decedent entered with a friend, Scott Ranney. They were both wearing red caps. They sat down, bought a soft drink and started talking to each other. They did not speak to the defendant or his associates, nor did the defendant or his friends speak to them. The defendant gave no indication that he knew either of them. The witness, however, commented to the defendant that they looked as if ...