Smith v. State, 29880

• Decision Date: 31 May 1961
• Docket Number: No. 29880,29880
• Parties: Robert H. SMITH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 27

175 N.E.2d 27

241 Ind. 665

Robert H. SMITH, Appellant, v. STATE of Indiana, Appellee.

No. 29880.

Supreme Court of Indiana.

May 31, 1961.

Robert H. Smith pro se, James P. Seidensticker, Jr., Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Richard M. Givan, Asst. Atty. Gen., Richard C. Johnson, Deputy Atty. Gen., for appellee.

LANDIS, Chief Justice.

This appeal is taken from appellant's judgment of conviction for assault with intent to feloniously shoot, kill, and murder one John Hamilton, for which appellant was sentenced to the Indiana State Prison for a period of one to ten years.

The only error here assigned is the overruling of appellant's motion for new trial based on the specification that the verdict of the jury is not sustained by sufficient evidence.

The evidence favorable to appellee necessary for our consideration of this question is as follows:

Shortly after midnight on August 13, 1958, appellant went to the residence of John Hamilton and knocked on the door with his 32 caliber revolver and asked to see his (appellant's) wife. Upon being informed by Hamilton that she was not there appellant stated: '* * * 'Open up this God damned door or I will blow it in' * * *.' Earlier in the evening (at about 11 p. m. on August 12) appellant orally expressed to one Walter Stone an intent to go to the residence of John Hamilton to look for his wife and to '* * * 'shoot the hinges off the door'' there.

It further appears that John Hamilton told appellant after the knocking that he would open the door, and that he did so open the door because he did not want it broken down. Hamilton testified that prior to opening the door he picked up a 20 inch iron water pipe. Appellant walked through the door carrying the revolver in his right hand, and Hamilton states appellant had the revolver in his right hand, and that he (Hamilton) struck appellant with the iron pipe over the right shoulder.

Appellant then fired the gun at Hamilton according to the latter's testimony, and the bullet was found embedded in the doorframe located to the right of the door through which appellant entered the Hamilton residence. Hamilton then struck appellant again with the pipe, knocking the revolver out of appellant's hand, under a table.

The wife of John Hamilton was in another room calling the police, and heard the appellant say, '* * * 'I am going to kill every God damned one.' * * *' Later she asked appellant, '* * * 'Bob why did you come here to kill us, what have we ever done to you [?]' * * *.' And appellant responded, '* * * 'I am sorry, I'm sorry.' * * *' The appellant later made a lunge for his revolver, whereupon he was again struck with the pipe.

Appellant contends the evidence at the trial was insufficient to prove premeditated malice or intent to kill John Hamilton.

Contrary to appellant's contention, there is direct evidence of appellant's intention to kill. The wife of Hamilton testified she had been warned by her nephew over the telephone a few minutes before the alleged assault took place, that appellant was coming to their home to kill them. While this evidence was hearsay, it was admitted without objection by appellant at the trial. It has been held that evidence upon a material point admitted without objection by the appellant, although incompetent, may be sufficient to sustain the verdict. Beeler v. State, 1952, 230 Ind. 444, 453, 104 N.E.2d 744, 747.

Alos, appellant stated shortly after firing the revolver and being struck by Hamilton, that he was going to kill everyone. This statement could have been considered by the jury as bearing on appellant's intent at the time the revolver was fired. As stated by this Court in Davidson v. State of Indiana, 1933, 205 Ind. 564, 569, 187 N.E. 376, 378:

'Any statement or conduct of a person indicating a consciousness of guilt, where at the time or thereafter he is charged with or suspected of the crime, is admissible as a circumstance against him on trial. Evidence of circumstances, which are part of a person's behaviour subsequent to an event with which it is alleged or suspected he is connected with or implicated in, are relevant if the circumstances are such as would be natural and usual, assuming the connection or implication to exist. Underhill, Criminal Evidence (2 Ed.) 213.'

And, as heretofore recited, when appellant was asked by Hamilton's wife: '* * * 'why did you come here to kill us, what have we ever done to you [?]' * * *', appellant stated in response, '* * * 'I am sorry, I'm sorry.' * * *'

Where one not in custody is accused of a crime and is at liberty to speak, a refusal to deny the accusation tends to show guilt. Rickman v. State (Lawrence v. State), 1952, 230 Ind. 262, 267, 103 N.E.2d 207, 210.

The contention heretofore made by appellant is completely without merit.

The next contention by appellant is that the evidence is insufficient to show an assault, appellant relying on Martin v. State of Indiana, 1895, 13 Ind.App. 389, 391, 41 N.E. 831, 832.

The Martin case was one in which appellant was convicted of assault on much weaker evidence than in the case at bar, and the judgment was affirmed on appeal. There, one Jester went to appellant's house where Jester's son and wife were. After an argument between the husband and wife over which one was to have the child, the husband (Jester) endeavored to open the screen door into...