Stice v. State

• Decision Date: 06 February 1950
• Docket Number: No. 28449,28449
• Parties: STICE v. STATE.
• Court: Indiana Supreme Court

Page 915

89 N.E.2d 915

228 Ind. 144

STICE v. STATE.

No. 28449.

Supreme Court of Indiana.

Feb. 6, 1950.

J. Evelyn Pitschke, Indianapolis, for appellant.

J. Emmett McManamon, Atty. Gen., Charles F. O.'Connor, Deputy Atty. Gen., Merl M. Wall, Deputy Atty. Gen., for appellee.

JASPER, Chief Justice.

Appellant was charged by indictment with murder in the second degree, under § 10-3404, Burns' 1942 Replacement. He was tried by jury, convicted, and sentenced.

The only question presented under the assignment of error is the overruling of appellant's motion for a new trial.

Appellant first contends that the verdict of the jury is contrary to law and is not sustained by sufficient evidence.

The evidence discloses that appellant was a prizefighter, having been known during his career as 'One Round Muldoon'; that on the evening of May 8, 1947, appellant, the deceased, and one John Richard Bradley, had been drinking, and that the deceased, Olga Schwinn, was taken to the room of appellant by appellant and Bradley; that while in the room the deceased spilled some ashes from a heating stove on the floor, and appellant demanded that she clean them up; that she refused, and he hit her several times with his fist, and her nose started to bleed; that Bradley stayed about fifteen minutes and then left appellant's room at about 1:15 a. m., on Friday, May 9, 1947; that about 3:00 a. m. appellant came to the apartment of one James R. Vinson, on the same floor, in shorts and undershirt, and knocked on the door, saying that he wanted help and was in a lot of trouble; that he was told to put on some clothes and Vinson would then talk with him; that after putting on pants, appellant returned and again stated: 'I want you to help me. I am in a lot of trouble'; that when asked: 'What do you mean?' appellant said: 'I have murdered a woman'; that Vinson went with appellant to appellant's room and looked in the door, and when he started to leave appellant tried to grab him, and asked him what he was going to do; that Vinson said he was going to call the police, and appellant said: 'You better not call the police'; that appellant had blood on his shorts, undershirt, on his face, and on his arm; that at the time Vinson went to appellant's room, Olga Schwinn was lying crossways on the bed, on her back, and when she would breathe blood would run out of her mouth and nose; that the death of Olga Schwinn was caused by a severe cerebral concussion resulting in hemorrhages; that she died at the Indianapolis City Hospital twelve hours after being brought there; that when brought into the hospital she had bruises about her face and neck; and that the injuries were caused by severe blows upon the head.

A police officer testified that he arrived at appellant's room at about 3:13 a. m., on May 9, 1947, and found Olga Schwinn lying on the floor, nude from the waist down; that she was badly bruised about the head and face and was unconscious; that an ambulance was called and she was sent to the Indianapolis City Hospital; that she was bleeding, and had blood on her head and face and other parts of her body; that appellant was in the room, had on trousers, that there was blood on his face, on his hair, and on his undershirt; that when asked how it happened, he said he had hit her. There was blood on the bed, on the pillows, as well as on the floor and on the wall. The hair of the deceased was matted with blood and there was blood on her clothing.

Another police officer testified that he saw Olga Schwinn at 4:00 a. m., on May 9, 1947, at the Indianapolis City Hospital; that he observed her in the receiving ward, unconscious and unable to talk; that she was bruised about the face, had two black eyes, and was bleeding at the nose and at the mouth; that in a conversation with appellant he said he had struck the woman with his fist; that his knuckles or the back of his hand was skinned.

There was other evidence that appellant had slapped the deceased, and that after he slapped her several times she fell against the stove.

Medical testimony further showed that the deceased was a white female, approximately 46 years of age, weighing about 125 pounds; that an external examination revealed bruises on the forehead, on the left chin, and the right lower neck, and ecchymosis about both eyes; that there was extensive hemorrhage under the outer covering of the brain on the left side; that the left half of the brain appeared to be contused; that the origin of the hemorrhage could not be accurately determined because of the marked destruction of the brain substance.

This court cannot weigh evidence, but must determine whether there is substantial evidence of probative value from which a jury could reasonably have inferred that appellant was guilty of the crime. We therefore look to the direct and circumstantial evidence, and the inferences to be drawn therefrom, most favorable to the State. Here, if there is evidence of each essential fact in a chain of circumstances, we cannot weigh that evidence; and where the sufficiency of circumstantial evidence is in question, as in this case, we examine it carefully, not for the purpose of finding whether or not it is adequate to overcome every hypothesis of innocence, but with the view of deciding whether an inference may be reasonably drawn therefrom tending to support the verdict. Petillo v. State, Ind.Sup.1950, 89 N.E.2d 623; Christen v. State, Ind.Sup., 1950, 89 N.E.2d 445; Mandich v. State, 1946, 224 Ind. 209, 66 N.E.2d 69; Finch v. State, 1944, 222 Ind. 633, 56 N.E.2d 851; Thompson v. State, 1946, 224 Ind. 290, 66 N.E.2d 597; Dowty v. State, 1932, 203 Ind. 228, 179 N.E. 720; Wrassman v. State, 1921, 191 Ind. 399, 132 N.E. 673; Howard v. State, 1923, 193 Ind. 599, 141 N.E. 341.

We find that there is sufficient evidence to sustain the material elements of the charge.

Appellant contends that there was no showing that the death of the deceased was caused purposely and maliciously by appellant. These are questions of fact for the jury. Ketring v. State, 1936, 209 Ind. 618, 621, 200 N.E. 212; Landreth v. State, 1930, 201 Ind. 691, 696, 171 N.E. 192, 72 A.L.R. 891. Malice may be inferred from the use of a deadly weapon which caused the death charged in the indictment. Intent or purpose may be inferred from circumstances in evidence and the use of a deadly weapon. And the use of a deadly weapon is sufficient to support an inference of intent. Landreth v. State, supra; Mosier v. State, 1942, 219 Ind. 669, 40 N.E.2d 698; Brattain v. State, 1945, 223 Ind. 489, 61 N.E.2d 462. Therefore the sole question is whether the use of the first by appellant was a deadly weapon. The general rule is that ordinarily a blow with the fist does not imply malice or an intent to kill. 40 C.J.S., Homicide, § 25, p. 876. However,...