Stroud v. State, 279S41
Decision Date | 16 October 1979 |
Docket Number | No. 279S41,279S41 |
Parties | Mitchell STROUD, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Thomas C. Ryan, Deputy Public Defender, Ft. Wayne, for appellant.
Theodore L. Sendak, Atty. Gen., Philip R. Blowers, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Mitchell Stroud was charged by information in Allen Superior Court with felony murder in connection with the shooting death of Daniel Norris. On August 30, 1978, he was found guilty of this charge by a jury. Appellant was sentenced to a determinate prison term of forty years.
The only issue appellant raises on this appeal concerns whether there was sufficient evidence to support the giving of an instruction on felony murder. Ind.Code § 35-42-1-1 (Burns 1979 Repl.) provides in part:
Appellant claims there was no evidence tending to prove: (1) that appellant caused the death of Norris; and (2) that Norris was killed during the commission of a felony. We note as an initial matter that appellant admits taking part in the robbery. The facts pertinent to the disposition of this question are as follows.
On April 3, 1978, Paul Chapman and the decedent Daniel Norris were hitchhiking in the city of Fort Wayne when they were picked up by Greg Brownlow and appellant Mitchell Stroud. Brownlow was driving the car. After they had travelled a short distance, Brownlow pulled the car into a darkened parking lot. Stroud pointed a gun at Chapman and Norris, and Brownlow asked them how much money they had. They were ordered to raise their hands, and while Brownlow held the gun on the two, Stroud searched them, removing their wallets and other belongings from them. Brownlow then handed the pistol back to Stroud, who kept it trained on Chapman and the decedent Norris. They were then told to close their eyes. Norris refused to shut his eyes, and several more words were exchanged. Norris then grabbed for the gun Stroud was holding. As the two struggled for control of the gun, two shots were fired. The first struck appellant Stroud on the arm. The second shot struck Norris in the head, and he died from this wound a short time later. The struggle over the gun and the shootings took place very quickly.
Among the final instructions read to the jury was State's instruction number four, which states in part:
"To sustain the charge of murder, the State must prove the following propositions:
1. That the defendant was committing or attempting to commit the crime of robbery;
2. That when the defendant did so he engaged in conduct causing the death of Daniel Grant Norris, whether the killing was intentional, unintentional or accidental. If you find from your consideration of all the evidence that each of these propositions had been proved beyond a reasonable doubt, then you should find the defendant guilty. . . . ."
Record at 39. The defendant objected to the giving of this instruction in the following manner:
Record at 240-41. Appellant thus contends there was insufficient evidence to support the giving of this instruction. Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836; Wathen v. State, (1965) 246 Ind. 245, 204 N.E.2d 526. He argues that the uncontroverted evidence shows that the shooting was an accident and occurred as the result of a struggle for the gun between appellant and Norris. Therefore, it is asserted, there was no evidence that appellant caused Norris' death. On the contrary, he claims Norris caused his own death by attempting to take the weapon away from his robbers.
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Davis v. State
...inception of the felony to the time of the homicide, we treat the two events as part of one continuous transaction. Stroud v. State, (1979) 272 Ind. 12, 395 N.E.2d 770. According to Webster, the word "while" has more than one meaning, but the primary meaning of the word when it is used as a......
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