Turner v. State

• Decision Date: 04 April 1972
• Docket Number: No. 470S93,470S93
• Court: Indiana Supreme Court
• Parties: Henry J. TURNER, Appellant, v. STATE of Indiana, Appellee.

Page 621

280 N.E.2d 621

258 Ind. 267

Henry J. TURNER, Appellant, v. STATE of Indiana, Appellee.

No. 470S93.

Supreme Court of Indiana.

April 4, 1972.

Raymond S. Robak, Wolf & Robak, Greenfield, for appellant.

Theodore L. Sendak, Atty. Gen., J. Frank Hanley, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

The appellant, together with two co-defendants, was charged by indictment with the crime of first degree murder and murder in the commission of a felony, to-wit: robbery. Separate trials were granted to appellant's co-defendants. Appellant was tried by jury and found guilty of the lesser included offense of manslaughter.

The evidence most favorable to the state discloses:

The decedent, Charles Dale, was beaten and robbed during the night of February 22--23, 1969. Shortly after the incident he returned home, bloody and wet. He told his mother, 'Two men have really beat me up tonight.' Shortly thereafter he lapsed into a coma, was taken to Marion County General Hospital where surgery was performed. He remained in a coma until his death on March 20, 1969.

Billy Joe Cawthon, an alleged accomplice of the appellant in the commission of the charged crime, testified that he was present in the Haughville Tavern on February 22, 1969, at about 10:00--11:00 P.M. He stated that as he came out of the building he noticed a commotion across the street and saw Richard Emerson, the other co-defendant in this case, run from behind the building followed by the decedent. Emerson bent down, picked up a brick and ran around the tavern. The decedent also went behind the building. Cawthon testified he heard 'a little smack' and he heard Turner say, 'damn Richard.' The witness crossed the street and asked what was going on. He then told how the defendants beat and robbed the decedent.

The pathologist testified that decedent died of a severe blow to the head, which probably could not have been caused by a fist.

At the time the appellant was arrested and after first being advised of his constitutional rights and having waived his right to have an attorney present, gave a written statement to the police in which he stated that he had agreed to join Cawthon and Emerson in the robbery which resulted in the decedent's death. In his statement the appellant further described the manner in which the attack occurred against the decedent.

Appellant claims the trial court erred in permitting Viola Dale, the mother of Charles Dale, the decedent, to testify that the decedent arrived home about 2:00 A.M. of the morning following the alleged attack and stated to her that he had been severely beaten by some men. It is appellant's position that this remark by the decedent to his mother was too far removed in time and place from the alleged scene of the attack to constitute a part of the res gestae. Without deciding whether or not this evidence was admissible under the res gestae exception to the hearsay rule, we hold that its inclusion was not of such substantial harm to appellant's case to justify reversal. There was other substantial evidence that the decedent did in fact receive a severe beating at the hands of someone on the night in question. The mother's testimony added nothing to this fact. Even if the testimony of decedent's mother should have been rejected (a fact which we do not decide), its admission was harmless error in that it merely recited facts clearly proven by other competent evidence. Wells v. State (1970), Ind., 261 N.E.2d 865, 22 Ind.Dec. 573; Rowe v. State (1968), 250 Ind. 547, 237 N.E.2d 576, 14 Ind.Dec. 516; Peterson v. State (1968), 250 Ind. 269, 234 N.E.2d 488, 13 Ind.Dec. 321.

Appellant next alleges the trial court erred in permitting one John Robert Fagan, foreman of the grand jury which returned the indictment against appellant, to testify as to evidence received before the grand jury from his memory without reading from the transcript of the proceedings before the grand jury. The grand jury foreman was called by the appellant pursuant to I.C.1971 35--1--15--17, also found in Burns Ind.Stat., 1956 Repl., § 9--817, for the purposes of impeaching the accomplice witness. We find no merit in this contention by the appellant and further note that no objection was raised at the trial by the appellant to the procedure followed by the trial court. The court first allowed the witness to refresh his memory from the transcript of proceedings before the grand jury, then permitted him to testify. In Richardson v. State (1971), Ind., 266 N.E.2d 51, 24 Ind.Dec. 474, this Court held that it was proper to permit a member of the grand jury to testify concerning the proceedings before the grand jury and to refresh his recollection from the transcript of such proceedings.

Appellant next claims the verdict of the jury is contrary to law and not sustained by sufficient evidence. In reviewing the allegation of sufficiency of the evidence this Court will not weigh the evidence nor resolve questions of credibility of witnesses. We will look only to that evidence and the reasonable inferences therefrom which support the verdict of the jury. Asher v. State (1969), 253 Ind. 25, 244 N.E.2d 89, 16 Ind.Dec. 429. There is evidence in this record that the decedent died from a severe blow on the head and that such blow was received during the alleged robbery. It is true there is no direct evidence that the appellant personally struck the death blow. There was ample evidence from which the jury could find that the appellant was acting in concert with others in inflicting injury upon the decedent. Such evidence was sufficient to support the verdict. The trial court properly instructed the jury as follows:

'Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command, or otherwise procure a felony to be committed, may be charged by indictment, or affidavit, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted; and, upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.'

We, therefore, hold the verdict of the jury was not contrary to law and that it was sustained by sufficient evidence.

Appellant next claims the trial court erred in reading the court's Instruction No. 17 to the jury, which instruction reads as follows:

'Malice may be proved by direct evidence such as prior threats, assaults or seeking an opportunity to perpetrate the act. This is called express malice. Malice may also be implied from the act of killing if the killing is done purposely and without legal excuse or sufficient provocation; and if the act is perpetrated with a deadly weapon so used as to likely produce death, the purpose to kill may be inferred from the act of killing.'

Appellant claims this instruction is erroneous for the reason that it refers to the use of a deadly weapon whereas he claims there is no evidence of the use of a deadly weapon nor does the indictment charge the use of a deadly weapon. We find no merit to appellant's contention. There is evidence in this case that a brick was used in the assault. We cannot say that the trial court injected a new fact into the trial by the giving of this instruction. We, therefore, hold the instruction was applicable to the evidence received in the case.

Appellant next alleges the trial court erred in refusing to give appellant's tendered Instruction No. 4, which reads as follows:

'The testimony of an accomplice should be cautiously received and carefully scrutinized by the jury, and weighed by the jury according to its credibility.'

There is no question but what the testimony of accomplices at one time was not accepted at all. However, Indiana long ago by statute specifically provided for the testimony of accomplices. See Burns Ind.Stat., 1956 Repl., § 9--1603, I.C. 35--1--31--3. This Court has stated that a conviction may be based upon the uncorroborated testimony of an accomplice. Green v. State (1960), 241 Ind. 96, 168 N.E.2d 345. From time to time this Court has made statements to the effect that the testimony of an accomplice must be closely scrutinized and received with caution. See Green v. State, supra; Kleihege v. State (1934), 206 Ind. 206, 188 N.E. 786. There can be no doubt as to the wisdom of this observation. In fact, similar observations might correctly be made concerning the testimony of many witnesses who have an obvious interest in the person or the subject matter of the litigation. It is, however, improper for a trial court to invade the province of the jury by commenting on the competency of or the weight to be given to the testimony of any particular witness who testifies in a case. Taylor v. State, decided by this Court February 15, 1972, 278 N.E.2d 273.

In Bohan v. State (1923), 194 Ind. 227, at page 239, 141 N.E. 323, at page 328 this Court stated:

'Whether an instruction in a criminal case is erroneous as invading the province of the jury is to be tested by the question whether the court intimates its opinion as to the credibility of witnesses or weight to be given the testimony.'

The same Court in discussing the specific question of the testimony of an accomplice in Adams v. State (1923), 194 Ind. 512, 141 N.E. 460, stated that an instruction which provided specifically that the evidence of an accomplice is to be received and weighed by the jury in the same manner and according to the same rules as the evidence of any other witness was correct. The general pattern of instructions long used in this state and followed in the case at bar instruct the jury that they are the judges of the credibility of the witnesses and the weight to be given to their testimony. They are further instructed that in determining what evidence they will accept and what they will reject, they may take into consideration the interest, if any, that a witness has in the...