White v. State, No. 1274S240

Docket NºNo. 1274S240
Citation265 Ind. 32, 349 N.E.2d 156
Case DateJune 24, 1976
CourtSupreme Court of Indiana

Page 156

349 N.E.2d 156
265 Ind. 32
Basil WHITE, Appellant,
v.
STATE of Indiana, Appellee.
No. 1274S240.
Supreme Court of Indiana.
June 24, 1976.

[265 Ind. 33]

Page 157

C. Thomas Billings, Greenfield, for appellant.

Theodore L. Sendak, Atty. Gen., Robert S. Spear, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Basil White, was indicted for first degree murder. After a trial by jury, he was found guilty of second degree murder, Ind.Code § 35--1--54--1, and sentenced to a term of fifteen to twenty-five years.

He appeals on two interrelated grounds: (1) that the State did not produce sufficient evidence of probative value to rebut appellant's claim of self-defense, and (2) that the State did not prove beyond a reasonable doubt all the necessary elements of second degree murder and that, therefore, the verdict was contrary to law.

The facts which support the verdict of the jury show that, on January 2, 1974, in the B & R Tavern in Indianapolis, Jeffrey Walls had a fight with William Kolbaba. After the bartender warned them to quit, Walls' girlfriend scratched Kolbaba and hit him, and he slapped her across the face. At that point, the bartender asked the three to leave.

Walls and his girlfriend went to another tavern, the Cardinal Tavern, where appellant and John Felts were machine bowling. Walls told them that three men had

Page 158

ganged up on him and showed appellant his severely cut lip. Appellant saw the girl's swollen face. He asked Felts if he wanted to go with them to find the man who struck the girl. Felts agreed, and the three men returned to the B & R Tavern. There, the bartender told appellant the truth about the fight and explained how Walls' girlfriend had provoked the man's response. The three left and went on the the Liberty Tavern, but did not find Kolbaba. Then, they decided to walk to the Toddle House Restaurant.

As they entered, Walls identified Kolbaba. He was the only person in the Toddle House, except the waitress. He had a cup of coffee and his silverware, but was waiting for his [265 Ind. 34] meal. The three separated as they entered, and appellant asked Kolbaba if he had struck his sister. Kolbaba stood up and came around in front of the stool, facing appellant and the door. He said that he had and told appellant the same story as the bartender had told. They argued.

At one point, appellant drew a gun from his belt and pointed it at Kolbaba. Kolbaba asked the waitress to call the police. As she started to the phone, one of the other men with appellant told her not to do that. She walked back to the counter, and appellant was still holding the gun. Then Kolbaba said there was a policeman next door, and appellant put the gun back in his belt, inside his jacket.

Kolbaba said he would fight appellant and the other two outside, if appellant would leave his gun inside. But, he would not, and they did not go outside. The waitress who explained this sequence of events turned her back to work at the stove. She said they argued a bit more, then there was silence, and she heard a shot. She turned around and saw the three men outside running away.

Kolbaba was lying on his back on the floor with his feet to the door. No one found a weapon in his hand, or in his pockets, or in the area. When the police arrested appellant an hour after the occurrence, he gave an alibi, but, at trial, he admitted the homicide. The homicide occurred at 1:30 a.m., January 3, 1974.

A police officer, who had run tests, determined that Kolbaba was a minimum of four feet away when the gun discharged because there was no gunpowder residue on the shirt he was wearing.

Appellant's first argument is that he acted in self-defense. When we review a self-defense claim, we determine if there is any substantial evidence of probative value from which the jury could have determined beyond a reasonable doubt, that appellant did not act in self-defense. Appellant must have acted without fault, been in a place where he had a right to be, and been in real danger of [265 Ind. 35] death or great bodily harm, or in such apparent danger as caused him in good faith to fear death or great bodily harm. The State has the burden of showing that appellant did not meet one of these requirements. And, the jury determines if the State has carried its burden. King v. State, (1968) 249 Ind. 699, 234 N.E.2d 465, and cases cited therein. In determining apparent danger, for example, the jury must review the circumstances from appellant's point of view, but the jury is not required to credit his testimony.

Appellant's self-defense claim is based on his and Felts' testimony and on inferences from other evidence introduced by the State. He and Felts testified that appellant had first drawn and pointed his gun at Kolbaba...

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27 practice notes
  • Kelsie v. State, No. 1274S241
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Septiembre 1976
    ...cause death or great bodily harm permits an inference that the defendant was acting with malice and purpose. White v. State (1976), Ind., 349 N.E.2d 156. It is the province of the jury to determine the credibility of witnesses and to determine whether it will believe all, none, or any part ......
  • Ortiz v. State, No. 576S147
    • United States
    • Indiana Supreme Court of Indiana
    • 16 Noviembre 1976
    ...inferred from the deliberate use of a deadly weapon in a manner likely to cause death or great bodily harm. White v. State, (1976) Ind., 349 N.E.2d 156; Taylor v. State, (1973) 260 Ind. 264, 295 N.E.2d Williams' statement that some person (unnamed in the edited version read to the jury) req......
  • Feggins v. State, No. 676A176
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Enero 1977
    ...inferred from the intentional use of a deadly weapon in a manner likely to cause death or great bodily harm, White v. State, (1976) Ind., 349 N.E.2d 156, 160, is merely an alternative phrasing of the same rule. Therefore the verdict [265 Ind. 678] will stand if there is evidence from which ......
  • Wollam v. State, No. 1176S413
    • United States
    • Indiana Supreme Court of Indiana
    • 15 Septiembre 1978
    ...weapon in a manner likely to cause death or great bodily harm. Horton v. State, (1976) Ind., 354 N.E.2d 242; White v. State, (1976) Ind., 349 N.E.2d 156. Here, there was substantial evidence of probative value to support the jury's finding that the defendant acted with purpose and ISSUE II ......
  • Request a trial to view additional results
27 cases
  • Kelsie v. State, No. 1274S241
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Septiembre 1976
    ...cause death or great bodily harm permits an inference that the defendant was acting with malice and purpose. White v. State (1976), Ind., 349 N.E.2d 156. It is the province of the jury to determine the credibility of witnesses and to determine whether it will believe all, none, or any part ......
  • Ortiz v. State, No. 576S147
    • United States
    • Indiana Supreme Court of Indiana
    • 16 Noviembre 1976
    ...inferred from the deliberate use of a deadly weapon in a manner likely to cause death or great bodily harm. White v. State, (1976) Ind., 349 N.E.2d 156; Taylor v. State, (1973) 260 Ind. 264, 295 N.E.2d Williams' statement that some person (unnamed in the edited version read to the jury) req......
  • Feggins v. State, No. 676A176
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Enero 1977
    ...inferred from the intentional use of a deadly weapon in a manner likely to cause death or great bodily harm, White v. State, (1976) Ind., 349 N.E.2d 156, 160, is merely an alternative phrasing of the same rule. Therefore the verdict [265 Ind. 678] will stand if there is evidence from which ......
  • Wollam v. State, No. 1176S413
    • United States
    • Indiana Supreme Court of Indiana
    • 15 Septiembre 1978
    ...weapon in a manner likely to cause death or great bodily harm. Horton v. State, (1976) Ind., 354 N.E.2d 242; White v. State, (1976) Ind., 349 N.E.2d 156. Here, there was substantial evidence of probative value to support the jury's finding that the defendant acted with purpose and ISSUE II ......
  • Request a trial to view additional results

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