Taylor v. State, 25706.

• Decision Date: 02 July 1929
• Docket Number: No. 25706.,25706.
• Citation: Taylor v. State, 201 Ind. 241, 167 N.E. 133 (Ind. 1929)
• Parties: TAYLOR v. STATE.
• Court: Indiana Supreme Court

201 Ind. 241

167 N.E. 133

TAYLOR

v.STATE.

No. 25706.

Supreme Court of Indiana.

July 2, 1929.

Appeal from Delaware Circuit Court; Clarence W. Dearth, Judge.

Ertlo Ting Taylor was convicted of killing another maliciously, but without premeditation, and he appeals. Affirmed.

William A. McClellan, of Muncie, for appellant.

James M. Ogden, Atty. Gen., and George W. Hufsmith, Deputy Atty. Gen., for the State.

TRAVIS, J.

Appellant was charged by indictment with killing Earl Cook, by unlawfully, feloniously, purposely, and maliciously, but without premeditation, shooting him with a pistol. Appellant pleaded not guilty. Trial resulted in a verdict of guilty. The appeal is from the judgment upon the verdict, and is predicated upon the action of the court overruling appellant's motion for a new trial, for the reasons that the verdict is not sustained by sufficient evidence and is contrary to law.

Appellant's sole proposition is that the evidencefails to establish that he purposely and maliciously killed Earl Cook, which proposition rests upon whether or not appellant, in shooting Earl Cook, did so in self-defense.

The following facts are not disputed except by appellant: Appellant had known Cook for several months prior to the homicide, and they were together frequently. The day of the homicide Cook and three others gathered at appellant's home, where Cook had been painting some furniture. Appellant's home consisted of three rooms and a toilet room. The sole entrance to the toilet room was through a door from the kitchen. Cook was intoxicated. One of the persons told appellant that he had two quarters he wanted to spend, and asked for whisky. Then Cook said, “Make it four ways.” All but appellant were then in the kitchen. Then appellant went to the lounge, got something (what he got is not in evidence), and went into the kitchen. At the time appellant went into the kitchen where the other four persons were, Cook had a putty knife in his left hand, which he was shaking. Cook and appellant engaged in talking to each other, and each was profanely cursing; but there were no blows struck by either of them. Cook was shaking the putty knife when appellant, as he came out of the toilet room, said to him: “Don't do that, boy! Look out, boy!” And then appellant drew the pistol from his clothing and shot Cook. The shot penetrated Cook's breast above his heart, and passed through his body. He died within a few minutes after the shot was fired. Appellant and Cook had not fought or scuffled with each other before the shot was fired. There was no indication by disarrangement of furniture that a fight had occurred before the shooting. The foregoing narration of the evidence is that given on behalf of the state and most favorable to it.

Appellant testified in his own behalf to the effect that he put the pistol in his pocket when Cook first came into the house and before Cook began varnishing the furniture; that Cook threatened to injure him when one of the other men present, just before the homicide, said to appellant that he had two quarters that he wanted to spend; and that Cook struck at appellant with a knife, and said as he struck, “I'll fix you. ***” And that on Tuesday prior to August...