Stuck v. State

• Decision Date: 15 December 1970
• Docket Number: No. 370S71,370S71
• Citation: 264 N.E.2d 611,24 Ind.Dec. 46,255 Ind. 350
• Parties: Fred C. STUCK, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 611

264 N.E.2d 611

255 Ind. 350

Fred C. STUCK, Appellant, v. STATE of Indiana, Appellee.

No. 370S71.

Supreme Court of Indiana.

Dec. 15, 1970.

Wendell B. Iddings, Lebanon, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., for appellee.

HUNTER, Chief Justice.

The appellant was charged by indictment with the crime of first degree murder. Trial by jury resulted in a conviction of murder in the second degree and appellant was sentenced to the Indiana State Prison for life.

Several issues are raised on appeal as grounds for reversal. Appellant contends the verdict is not sustained by sufficient evidence and is therefore contrary to law; he assigns as error the trial court's overruling of his motion entitled A Plea in Abatement, Motion to Supress Evidence and Motion for Discharge of Defendant and its failure to sustain his motion for a directed verdict at the close of the State's evidence; finally appellant challenges the admission of certain testimony by one Floyd McClure, his father-in-law.

In reviewing a criminal conviction we may consider only that evidence most favorable to the State and all reasonable inferences to be drawn therefrom. Buckner v. State (1969), Ind., 248 N.E.2d 348; Carter v. State (1968), 250 Ind. 50, 234 N.E.2d 850; Manlove v. State (1968), 250 Ind. 70, 232 N.E.2d 874, 235 N.E.2d 62.

In this case that evidence may be summarized as follows:

On January 11, 1969 appellant and Floyd McClure consummated a plan to steal a pig and in pursuance of their designs they secured a 22 caliber pistol owned by appellant's wife. Appellant, attired in a red hunting hat and a blue windreaker jacket, elected to drive his wife's 1959 Chrysler Imperial which bore Indiana license plate number 49N7614. The car was pale green with a white top and had a cardboard with a slit in it over the driver's door window.

After a stop at a tavern they drove to the area of Westfield High School where appellant parked the car near a field containing swine and proceeded to shoot and kill one of the animals. At approximately this time Westfield Deputy Marshal David Brown came upon the scene in his patrol car. He parked near appellant's vehicle and called him over making a note of the appellant's license plate number on a note pad which lay in the seat to the officer's right.

The deputy then called the Noblesville Police dispatcher and requested a record check on appellant, Fred C. Stuck. Approximately nine minutes later, at 8:37 P.M., the dispatcher was unable to reach Officer Brown on the radio. Prompt investigation led to his discovery, shot to death behind the steering wheel of his car at the scene of his confrontation with the appellant. His service revolver was missing and it was later revealed by ballistics testing that it had been the gun used to kill him.

Observing the license number written on the note pad, the investigating officers had it checked through the records bureau. When it proved to be registered to Doris Stuck, appellant's wife, an immediate broadcast was made to be on the lookout for appellant and a car bearing Indiana license number 49N7614.

At approximately 8:30 P.M. a farmer had noticed a Westfield police car and a greenish car with a light top parked near where the deputy was found. He approached within fifty or sixty feet on foot and observed that the police vehicle's dome light was on and that two men were sitting in it, One, an officer, appeared to be writing a ticket. The other occupant was wearing a red hat and what appeared to be a blue jacket. In the pale green car, on the passenger side, sat a third individual.

Also at about 8:30 P.M. Rodney Dennis, driving near the scene, saw the police car and a light colored car parked. He saw two people in the police vehicle; the driver appeared to be writing and the other occupant was wearing a red hat. The light hued car had a piece of cardboard with a slit in it over the driver's door window.

One Marvin Lockhart testified that, at approximately 9:00 P.M. that same evening while motoring in the area, he observed a light colored 1959 Chrysler Imperial with its trunk open four to six inches and secured by a wire. The vehicle proceeded south on Keystone Avenue toward Indianaplis and Lockhart had occasion to follow it for approximately fifty blocks. During this period, while both cars were stopped at a light, Lockhart could see there were two occupants in the light colored automobile. He was unable to see their faces but did note that the man in the passenger's seat had on a checkered shirt.

Officer Huber of the Indianapolice Police Department heard the broadcast directing a lookout for appellant and a car bearing the particular license number. He recalled that he had stopped appellant in a 1959 light green Chrysler Imperial bearing Indiana license plate 49N7614 for a muffler violation earlier in the evening, around ten o'clock. At that time appellant had a passenger with him who wore a checkered shirt. Appellant had given Officer Huber the area of his residence. Huber reported his recollections to his superiors and was directed to seek out appellant. Upon locating the Chrysler Imperial parked in front of a duplex residence Huber radioed headquarters and was directed to wait assistance. As help arrived a short while later, Huber saw McClure on the front steps of the residence wearing a checkered shirt. The officers directed McClure to stop but he looked in their direction and turned into the house; the officers followed him and caught up a short distance inside the door. McClure had proceeded to start up some stairs to the second floor and was there arrested. At this time appellant came into view from off the adjacent kitchen wearing a blue jacket and a red hunting hat. In the kitchen, in open view, lay a partly butchered pig. Appellant, asked if he was Fred C. Stuck, replied that he was not and further indicated that no one by that name lived there. The officers asked to see his identification papers and when they revealed his name he was arrested. The time was approximately 11:45 P.M., about two and one half hours after Deputy Brown had been found.

Certain members of the arresting contingent looked through the windows of the 1959 Chrysler Imperial parked in front of the arrest situs. Inside they observed two pistols, one stuck in the driver's door handrest and the other lying partially under the front seat on the driver's side. They opened the unlocked doors and secured the pistols. One was of 22 caliber; the other, a 38 caliber, was Deputy Brown's.

On appeal this court may review the record to ascertain if, as a matter of law, there was sufficient evidence to justify a trier of fact in reasonably inferring guilt beyond a reasonable doubt. Smith v. State (1970), Ind., 260 N.E.2d 558.

Proof beyond a reasonable doubt may be established by circumstantial evidence; however, such circumstantial evidence must be of sufficient probative value to exclude every reasonable hypothesis of innocence. Appellant properly cites Manlove v. State, supra, as authority for this proposotion but contends that since each and every hypothesis, other than that of his guilt, has not been excluded that his conviction is improper. However, appellant fails to recognize that Manlove further holds that the evidence need not point to only one reasonable alternative to support a verdict. On the contrary,

'However, it should also be stated that where there are two reasonable inferences arising from the circumstantial evidence in a case, one of guilt and another of innocence, it is not the duty or right of this Court to reverse simply because we might believe the circumstances do not exclude every reasonable hypothesis of innocence.' 250 Ind. at 77, 232 N.E.2d at 878.

A review of the evidence most favorable to the state reveals ample evidence of probative value to support a reasonable inference of guilt, notwithstanding reasonable inferences of innocence.

Appellant's car was placed at the scene. Appellant admitted having gone to the area to steal a pig and a partly butchered pig was found in his kitchen. He was arrested wearning a red hat; a man wearning a red hat was seen with Deputy Brown near the time of his murder. A check on appellant had been requested by the deputy shortly before his death. The murder weapon was found in appellant's car.

From such information it seems not unreasonable to infer that appellant was caught in an illegal act and that he took the life of Officer Brown to effect his escape. Admittedly, other inferences may be possible, particularly since appellant testified that he let McClure use the red hat while they shot the hog and went about loading it and that McClure returned it on the way home. But, we may not choose from among possible inferences. making such elections is the province of the trier of fact as long as its conclusions are reasonable. We cannot say that as a matter of law they were not so in this case.

Appellant next asks that we review the propriety of the trial court's refusal to grant his request for a directed verdict at the close of the state's evidence. To avoid a directed verdict the state must merely make out a prima facie case. Holliday v. State (1970), Ind., 257 N.E.2d 679. Since it is readily apparent from the foregoing discussion that this...