Wardlaw v. State, No. 571S141

Docket NºNo. 571S141
Citation259 Ind. 282, 286 N.E.2d 649
Case DateSeptember 05, 1972
CourtSupreme Court of Indiana

Page 649

286 N.E.2d 649
259 Ind. 282
Hughland WARDLAW, Appellant,
v.
STATE of Indiana, Appellee.
No. 571S141.
Supreme Court of Indiana.
Sept. 5, 1972.
Rehearing Denied Oct. 17, 1972.

[259 Ind. 283] Gil I. Berry, Jr., Buck, Berry, Landau & Breunig, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., of Ind., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

This is an appeal from a conviction on a charge of first degree murder in which the defendant was sentenced to imprisonment for life. IC 1971, 35--13--4--1; Burns' Ind.Stat.Ann. § 10--3401 (1972 Supp.).

The evidence indicates that the defendant and Louis Covington were homosexuals and that they became acquainted while both were doctor's assistants at Larue Carter Hospital in 1967 or 1968. It is admitted that they indulged in homosexual activities together. There came a time when there was an attempted separation;

Page 650

however, the evidence is in conflict as to which one, or whether both, desired to make the separation. The evidence further shows that their separation was not peaceable. At one time the victim attacked the defendant with a razor, and at another time, the defendant shot the victim in the shoulder. The resulting wound was not fatal.

Shortly before midnight, on August 29, 1970, the defendant drove up in front of his brother's house and engaged in a conversation with his brother. Louis Covington drove up along side the defendant. The defendant grasped a .38 caliber pistol which he had recently purchased, threw his arm out the window and shot Covington. The bullet struck Covington in the head and he died on this wound. The defendant drove away and later gave himself up to the police. No weapons were found on the victim or in his car.

At the close of the state's evidence the defendant moved for a directed verdict on the ground that there was no evidence of premeditation. With that motion before it, the court was [259 Ind. 284] confronted with directing the jury to find the defendant not guilty of murder in the first degree. Having reviewed the evidence, we are of the opinion that the jury had some latitude to determine whether or not premeditation could have existed in this case.

Sargeant Cottey testified that he asked the defendant whether or not he saw Covington with a weapon and his answer was that the defendant '. . . stated that he didn't see him with anything, but he stated that he was just scared.' He also said that the defendant told him that Covington was going to kill him. The defendant testified that it looked like Covington had something in his hand that might have been a gun. However, there is no evidence that Covington made any movement to draw a gun.

It is true that the defendant may act upon appearances that seem to be threatening his life even though he may actually be mistaken. Banks v. State (1971), Ind., 276 N.E.2d 155, 159, reh. den.; Heglin v. State (1957), 236 Ind. 350, 353, 140 N.E.2d 98, 99. However, in this case the jury could have considered the fact that the appellant and the victim were not on good terms and had quarreled and fought before; that the defendant was carrying a gun for some reason and purpose; that the defendant had stated to a police officer that he did not see any gun which the victim had; and, that no gun was found on the victim or in the victim's car after the shooting. The jury had the privilege of disbelieving the appellant's story that he thought the victim had something that looked like a gun. The jury had a right to conclude from the evidence that the defendant was really not acting on what he said was an appearance of a threat to his life, but rather upon a desire to get rid of an obnoxious individual who desired to associate with him. The jury had a right to weigh and consider these pieces of evidence and...

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6 practice notes
  • Moore v. State, No. 572S62
    • United States
    • Indiana Supreme Court of Indiana
    • March 7, 1973
    ...weigh the evidence nor pass on the credibility of witnesses. Lee v. State (1972), Ind., 286 N.E.2d 840; Wardlaw v. State (1972), Ind., 286 N.E.2d 649; Capps v. State (1972), Ind., 282 N.E.2d 833; Gunn v. State (1972), Ind., 281 N.E.2d 484. A brief synopsis of only that evidence most favorab......
  • Dunn v. State, No. 1171S319
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1973
    ...evidence nor determine the credibility of witnesses. Lee v. State (1972), Ind., 286 N.E.2d 840; Wardlaw v. Page 33 State (1972), Ind., 286 N.E.2d 649; Capps v. State (1972), Ind., 282 N.E.2d 833; Gunn v. State (1972), Ind., 281 N.E.2d 484. Only that evidence most favorable to the Appellee a......
  • Hubble v. State, No. 1271S383
    • United States
    • Indiana Supreme Court of Indiana
    • August 6, 1973
    ...disturbed. Moore v. State (1973), Ind., 293 N.E.2d 28; Dunn v. State (1973), Ind., 293 N.E.2d 32; Page 615 Wardlaw v. State (1972), Ind., 286 N.E.2d 649; Lee v. State (1972), Ind., 286 N.E.2d A review of the evidence most favorable to the state discloses the following facts. The concession ......
  • Napier v. State, No. 373S55
    • United States
    • July 17, 1973
    ...not be disturbed. Moore v. State (1973), Ind., 293 N.E.2d 28; Dunn v. State (1973), Ind., 293 N.E.2d 32; Wardlaw v. State (1972), Ind., 286 N.E.2d 649; Lee v. State (1972), Ind., 286 N.E.2d 840. The evidence most favorable to the state discloses the following On March 23, 1972, the Appellan......
  • Request a trial to view additional results
6 cases
  • Moore v. State, No. 572S62
    • United States
    • Indiana Supreme Court of Indiana
    • March 7, 1973
    ...weigh the evidence nor pass on the credibility of witnesses. Lee v. State (1972), Ind., 286 N.E.2d 840; Wardlaw v. State (1972), Ind., 286 N.E.2d 649; Capps v. State (1972), Ind., 282 N.E.2d 833; Gunn v. State (1972), Ind., 281 N.E.2d 484. A brief synopsis of only that evidence most favorab......
  • Dunn v. State, No. 1171S319
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1973
    ...evidence nor determine the credibility of witnesses. Lee v. State (1972), Ind., 286 N.E.2d 840; Wardlaw v. Page 33 State (1972), Ind., 286 N.E.2d 649; Capps v. State (1972), Ind., 282 N.E.2d 833; Gunn v. State (1972), Ind., 281 N.E.2d 484. Only that evidence most favorable to the Appellee a......
  • Hubble v. State, No. 1271S383
    • United States
    • Indiana Supreme Court of Indiana
    • August 6, 1973
    ...disturbed. Moore v. State (1973), Ind., 293 N.E.2d 28; Dunn v. State (1973), Ind., 293 N.E.2d 32; Page 615 Wardlaw v. State (1972), Ind., 286 N.E.2d 649; Lee v. State (1972), Ind., 286 N.E.2d A review of the evidence most favorable to the state discloses the following facts. The concession ......
  • Napier v. State, No. 373S55
    • United States
    • July 17, 1973
    ...not be disturbed. Moore v. State (1973), Ind., 293 N.E.2d 28; Dunn v. State (1973), Ind., 293 N.E.2d 32; Wardlaw v. State (1972), Ind., 286 N.E.2d 649; Lee v. State (1972), Ind., 286 N.E.2d 840. The evidence most favorable to the state discloses the following On March 23, 1972, the Appellan......
  • Request a trial to view additional results

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