Stallings v. State

• Decision Date: 15 December 1970
• Docket Number: No. 869S189,869S189
• Citation: Stallings v. State, 264 N.E.2d 618, 255 Ind. 365, 24 Ind.Dec. 26 (Ind. 1970)
• Parties: Roosevelt STALLINGS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 618

264 N.E.2d 618

255 Ind. 365

Roosevelt STALLINGS, Appellant, v. STATE of Indiana, Appellee.

No. 869S189.

Supreme Court of Indiana.

Dec. 15, 1970.

Stanley A. Levine, Nieter, Smith, Blume, Wyneken & Dixon, Fort Wayne, for appellant.

Theodore L Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

GIVAN, Judge.

The appellant was charged with voluntary manslaughter as defined in Burns' Ind.Stat., 1956 Repl., § 10--3405. The cause was submitted for trial to the court without a jury. The court found appellant guilty of the included offense of aggravated assault and battery as defined in Burns' Ind.Stat., 1970 Supp., § 10--410.

The appellant in this case was originally tried on a charge of second degree murder and after conviction for the crime of manslaughter, appeal was had to this Court. This Court in an opinion filed April 11, 1968, reversed that conviction. See Stallings v. State (1968), 250 Ind. 256, 235 N.E.2d 488, 14 Ind.Dec. 15.

The facts as disclosed by the record are as follows:

On August 8, 1966, about noon the decedent came to an apartment building in which appellant's apartment was located. There was evidence that the appellant and the decedent were friends and that the decedent came to appellant's apartment inquiring as to the whereabouts of other tenants in the building. Rose Marie Davidson was a guest in appellant's apartment when decedent arrived. A conversation developed between appellant and the decedent concerning a fifty-cent debt between them. The conversation was first in a joking manner, but soon developed into hostility. The appellant was shaving in the bathroom which opened onto the living room and as the conversation continued the decedent went into the bathroom and struck the appellant causing him to fall into the bath tub. After appellant regained his footing, he obtained a gun from a shelf in the bathroom.

Miss Davidson's testimony was that the two men continued to struggle and that during the struggle shots were fried. The decedent stated that appellant had shot him and left the apartment. She testified that they were closer than three or four feet when the fatal shot was fired.

After the decedent left, the appellant 'stood there scared to death, shaking all over, looking as if he didn't know which way to go or what to do.'

The decedent ran outside and opened the door to his car, but apparently was unable to enter. He fell to the sidewalk and died.

The appellant admitted firing the gun two or three times. He claimed self-defense in that Taylor had hit him several times.

Testimony by Police Sergeant Leroy Cook was that in the course of his investgation the appellant took him into the apartment and showed him where the decedent was standing at the time the shot was fired and where the appellant was standing, indicating a distance of some nine feet between the two men at the time the shot was fired. There is thus a conflict of evidence between the testimony of Miss Davidson and the statement made by appellant to the officer immediately after the incident.

Appellant first claims error in that there is no substantial evidence of probative value that the infliction of great bodily harm by the appellant was done intentionally or knowingly and unlawfully, and that the finding of guilty of aggravated assault and battery was not sustained by the evidence. It is appellant's position that the finding of guilty of the lesser included offense was equivalent to a finding of not guilty on the charge of voluntary manslaughter. Appellant then argues that if the evidence was not sufficient to convict him of voluntary manslaughter, it would not be sufficient to convict him of aggravated assault and battery because the intent would be the same. That is, if there was no evidence that he intended to kill the decedent by firing the shot there would likewise be no evidence that he intended to inflict great bodily harm on the decedent. With this we cannot agree.

Each case must be determined within the framework of its own set of facts. In the instant case the evidence was that the appellant and the decedent were fighting at the time. The evidence indicated that they were friends and that the dispute was one of a minimal nature, yet the appellant saw fit to fire a deadly weapon two or three times at close range. This presents a set of facts to the court from which it could reasonably be deduced that the appellant deliverately fired the shots with an intent to injure the decedent, but without the specific intent to kill him which would be required for a conviction of voluntary manslaughter. We have repeatedly stated that we will not weigh the evidence on appeal. Smith v. State (1969), Ind., 249 N.E.2d 493, 18 Ind.Dec. 189.

Appellant also argues that the evidence in this case clearly discloses that he fired the gun in self-defense. It is true that appellant was in the bathroom in his own apartment and that regardless of who started the argument between appellant and decedent, it was the decedent who first physically attacked the appellant striking him hard enough to cause him to fall into the bath tub. It is true that when a person is attacked, especially in the confines of his own home, courts will look to the situation as it would reasonably appear to the person being attacked as to what force would be necessary to resist the attack, and this can only be determined from the standpoint of the person being attacked under all of the existing circumstances. In the case at bar the circumstances were before the court. It was the court's duty to consider and weigh these facts to determine whether or not the appellant had fired the gun thus injuring the decedent in the exercise of his right of self-defense. Bange v. State (1958), 237 Ind. 422, 146 N.E.2d 811.

The fact that the decedent was unarmed at the time of the fight, the fact the two men were friends and that the argument was originally of a rather insignificant matter, and the fact that the appellant fired more than one shot were all facts from which the trial court was fully justified in finding that the appellant in injuring the decedent had exceeded the bounds allowed under the law of self-defense and had at the time of the infliction of the injury upon decedent become the aggressor to an unreasonable degree.

Where as here the evidence is such that the trier of fact might reasonably draw two inferences, one of guilt or one of innocence, it is not within the province of this Court to determine which inference should control. This comes within the province of the trier of fact. In the case at bar the trial court determined from the facts that the appellant had used force in excess of that necessary to repel the attack and in so doing had perpetrated the crime of aggravated assault and battery. We will not review the facts to set aside that decision. Schlegel v. State (1950), 228 Ind. 205, 91 N.E.2d 167; Christen v. State (1950), 228 Ind. 30, 89 N.E.2d 445.

Appellant next claims the trial court erred in permitting testimony from Police Officer Robert Paulsen concerning statements made by the appellant in response to a question by Officer Paulsen to the appellant as to whether or not he was the person who shot the decedent. Appellant claims this evidence was obtained in violation of his constitutional rights as set forth in Miranda v. Ariz. (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and Escobedo v. Ill. (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

Officer Paulsen testified that shortly after he arrived at the scene the appellant appeared and that as appellant and the Officer walked toward each other Officer Paulsen asked, 'Did you shoot this man?' to which the appellant replied, 'Yes, sir, I did.'

Appellant also claims error in the admission of the testimony of Sergeant Cook of the Ft. Wayne Police Department concerning certain admissions made by the appellant. Sergeant Cook testified that Officer Paulsen brought the appellant to him informing him that appellant had admitted the shooting, whereupon the appellant immediately attempted to relate the facts to Sergeant Cook. Sergeant Cook stopped him and warned him he had a right to remain silent, that anything he said would be used as testimony in court, and that he had a right to have an attorney and have that attorney present. Sergeant Cook then placed the defendant under arrest and asked him if he had shot the decedent, to which appellant immediately replied that he had, and that he would take Sergeant Cook into the apartment and show him how it happened, which he did. So far as appellant's statement to Officer Paulsen is concerned, we see no need for the giving of the constitutional warnings as required in Miranda, supra.

The Supreme Court of the United States in the Miranda case at 384 U.S. pages 477, 478, 86 S.Ct. pages 1629--1630 stated:

'* * * General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information ...