Walker v. State, 30328
| Decision Date | 11 March 1965 |
| Docket Number | No. 30328,30328 |
| Parties | John W. WALKER, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
George E. Martz, Jerry M. Burton, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., David S. Wedding, Deputy Atty. Gen., for appellee.
Following the return of a jury's verdict of guilty, the appellant, John W. Walker, Jr., appeals from a conviction of accessory after the fact of second degree murder and a sentence of life imprisonment rendered by the Marion Criminal Court, Division One, on June 20, 1962. The appellant relies upon the overruling of the motion for a new trial as error on appeal. A number of errors are alleged, and we take them up in the order assigned.
It is first argued that the evidence is not sufficient to sustain the verdict. This is a companion case to Callahan v. State (1964), Ind., 201 N.E.2d 338, wherein Callahan was convicted of murder in the first degree as a result of shooting down an officer who attempted to interrogate him.
The evidence shows that the appellant in this case, with Ralph E. DuBois and Michael T. Callahan, had gone back to a tavern to pick up some tools which they had used to break into the place. They were in the front seat of the car when the deputy sheriff pulled up in his car, with the red light flashing, and ordered the three out of their car. At that time Callahan ran up to the car of Edward G. Byrne, the deputy sheriff, and shot him three or four times. The appellant stated: 'I don't know exactly how many times, but at least three times.' Callahan was found guilty of murder in the first degree. The appellant's statement with reference to the killing was admitted in evidence without objection. The statute [Burns' Ind.Stat.Anno. Sec. 9-103 (1956 Repl.)] in this case provides:
One of the principal contentions made as to the insufficiency of the evidence is that there was no proof that the appellant did 'after the commission of such crime, harbor, conceal or assist such offender with intent that he shall escape from detection, capture, arrest or punishment, * * *'
A review of the evidence does show that after the shooting of the deputy sheriff by Callahan, the appellant aided 'in hiding the burglary tools under a board under the back porch of DuBois' house.' Appellant also admitted that he assisted Callahan in 'ditching' Callahan's automobile.
Appellant further admitted that he drove Callahan to a phone booth so Callahan could make a phone call and that he gave Callahan $15.00 since Callahan was out of money to buy gasoline, etc. From this evidence, logical inferences could be drawn by the jury that appellant assisted Callahan in attempting to escape arrest, capture and detection.
Appellant, however, claims that his actions were not voluntary, but that he was under fear that Callahan would turn on him and kill him or cause him trouble thereafter. The evidence shows that Callahan lost his gun after the shooting of the deputy sheriff and actually had no gun, and made a search through the automobiles in order to get a gun, but never found any. Appellant, however, states that he did not know for certain that callahan was without a weapon. This again is a question for the jury to determine. The evidence further shows that appellant and Callahan were driving separate cars after they left the scene of the killing and that appellant followed Callahan. Appellant further insists that he did not know that the deputy was killed or that Callahan had committed a murder. In prosecutions for accessory after the fact, the State need only show that the accessory had good reasons to believe that the crime had been committed by the principal.
'* * * The triers of the fact are not required to accept the defendant's story where his credibility has been impeached or where the evidence leads them reeasonably to a contrary conclusion.' Schweigel v. State (1964), Ind., 195 N.E.2d 848, 850; 22 C.J.S. Criminal Law Sec. 96, p. 276; Roberson V. State (1943), 69 Ga.App. 541, 26 S.E.2d 142; Clark v. State (1953), 159 Tex.Cr.R. 187, 261 S.W.2d 339.
Appellant John W. Walker took the stand to explain his defense. He revealed a considerable criminal record dating back for a number of years. The jury had a right to determine the credibility of the appellant as a witness and to believe or not believe any part or all of his testimony. Harrison v. State (1964), Ind., 197 N.E.2d 770; Wells v. State (1964), Ind., 197 N.E.2d 301.
We find the evidence sufficient to support the jury's verdict in the particulars presented above.
It is next argued that the verdict is contrary to law because although the principal was found guilty of murder in the first degree, the appellant here was found guilty of being an accessory after the fact to second degree murder. The crux of the instant crime of the principal is murder or homicide. The second degree is an included offense of first degree murder. It has been stated that at common law accessories 'must be convicted of a felony of the same species as the principal.' 1 Chitty, Criminal Law 272 (4th American ed. 1841)
We further point out that under the statute [Burns' Ind.Stat.Anno. Sec. 9-103 (1956 Repl.)] the accessory may be tried before the principal. This being true, when the principal's exact degree of guilt has not yet been determined, to hold otherwise would be illogical and unworkable in criminal procedure. Finally, the appellant waived any consideration on this point in failing to make any objections to the court's instructions regarding the principal crime of which the accessory could be found guilty. Pacelli v. State (1929), 201 Ind. 455, 166 N.E. 649; Cosilito v. State (1926), 197 Ind. 419, 151 N.E. 129; 9 I.L.E. Criminal Law Sec. 604, p. 98.
The argument is presented that the verdict is contrary to law because the undisputed evidence is that the appellant was present at the time of the commission of the principal crime of which he is charged as an accessory, and that an accessory to a crime is one who is not present at its commission. We feel that this is not a sound but purely technical distinction. Some old English law from Blackstone's Commentaries is quoted as stating:
'An accessory is he who is not the chief actor in the offense, nor present at its performance, but is some way concerned therein, either before or after the fact committed.' 4 Blackstone's Commentaries 35 (Tucker ed. 1803)
To us this appears to be language loosely used.
1 Bishop, Criminal Law, Sec. 663 (9th ed. 1923), expresses the idea more accurately when it says: 'An accessory is one who participates in a felony too remotely to be deemed a principal.'
It is stated in Perkins on Criminal Law at page 580:
It has been held that one may be present at the time of the commission of a murder and not participate therein, yet thereafter aid in the escape or concealment of the killer, and the statute as to accessories after the fact is applicable. We feel this is a sensible and proper interpretation. Smith v. United States (1962), 113 U.S.App.D.C. 126, 306 F.2d 286; White et al. v. People (1876), 81 Ill. 333.
The language cited by the appellant to the contrary is language which we feel is not accurately used in the cases cited and that particular point was not in issue therein.
It is next stated that appellant's motion for a mistrial should have been granted, based upon what is claimed the misconduct of the prosecuting attorney and asking alleged improper questions of the appellant when he was on the stand. The testimony, as set forth in appellant's brief, is as follows:
'Q. Now, Mr. Walker, do you know a person by the name of Sam Gregg?
'A. Yes sir I know a person by the name of Sammy Gregg.
* * *
* * *
'Q. Were you with him on occasions other than at the Tailor Shop?
'Q. You said yes?
'A. Yes.
* * *
* * *
'Q. Uh huh, now in this combination of Callahan, Walker and DuBois, you were known as the chop man weren't you?
* * *
* * *
'Q. Are you acquainted with a person by the name of...
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