Thomas v. State, 1170S265

• Decision Date: 13 July 1973
• Docket Number: No. 1170S265,1170S265
• Citation: 298 N.E.2d 425,260 Ind. 604
• Parties: Larry THOMAS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 425

298 N.E.2d 425

260 Ind. 604

Larry THOMAS, Appellant, v. STATE of Indiana, Appellee.

No. 1170S265.

Supreme Court of Indiana.

July 13, 1973.

Rehearing Denied Aug. 31, 1973.

A. Martin Katz, Gary, for appellant.

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

HUNTER, Justice.

This is a direct appeal from a conviction of involuntary manslaughter. Appellant was indicated for second degree murder in the shotgun death of Betty Spiller. A jury trial commenced on March 16, 1970. Appellant was found guilty of involuntary manslaughter and was sentenced to state prison for a term of one to ten years. His motion for a new trial was overruled on June 23, 1970. On January 11, 1971, this Court granted appellant permission to file a belated appeal.

One issue is presented herein. Appellant contends that the evidence at trail was insufficient to prove involuntary manslaughter. In particular, he urges that there was no direct proof of the commission of an 'unlawful act.' Involuntary manslaughter is defined in IC 1971, 35--13--4--2; Ind.Ann.Stat. § 10--3405 (1972 Supp.), as follows:

'Involuntary Manslaughter. Whoever kills any human being without malice, expressed or implied, involuntarily but in the commission of some unlawful act, is guilty of involuntary manslaughter, and, on conviction, shall be imprisoned in the state prison for not less than one (1) nor more than ten (10) years: . . .'

The State contends that the evidence supports a finding that the appellant was engaged in the unlawful act of purposely aiming a shotgun at the decedent as defined in IC 1971, 35--1--79--5; Ind.Stat.Ann. § 10--4708 (1972 Supp.):

'Aiming weapons.--It shall be unlawful for any person over the age of ten (10) years, with or without malice, purposely to point or aim any pistol, gun, revolver or other firearm, either loaded or empty, at or toward any other person; and any person so offending shall be deemed guilty of an unlawful act . . .'

When this Court is faced with a sufficiency of the evidence argument, we will consider only that evidence most favorable to the State together with all reasonable inferences therefrom which will support a finding of guilty. The conviction will be affirmed if there is substantial evidence of probative value from which the trier of fact could reasonably have inferred guilt beyond a reasonable doubt. Livingston v. State (1972), Ind., 277 N.E.2d 363.

There were no eyewitnesses to the shooting incident. The facts most favorable to the State disclose that two days before the shooting the appellant took a shotgun from the trunk of his car, polished it in the kitchen of his apartment, and remarked that, 'This is for a nigger.' On October 1, the day before the shooting, the appellant engaged in a heated telephone conversation with the decedent during which time he made threatening remarks toward her. Later that day the victim telephoned a girl friend who testified that Betty Spiller's voice was not normal. The witness further testified that the appellant then got on the telephone and she informed him that Betty had been associating with another man. The appellant asked what kind of car the other man drove and asked where he could be found. The shooting took place at approximately 2:15 a.m. on October 2. When the police arrived on the scene, they found the victim in the kitchen shot in the back. Two spent shotgun shell casings were found on the floor; the shotgun was found next to the body. There was a shotgun hole in a mattress in the bedroom.

A neighbor testified that shortly after he heard the shots, the appellant drove away in his car. The appellant returned to the scene after the police arrived, observed their presence, left the scene again and did not surrender to the authorities until one week...