Wilson v. State

Decision Date16 September 1975
Docket NumberNo. 274S41,274S41
Citation48 Ind.Dec. 663,263 Ind. 469,333 N.E.2d 755
PartiesJohnie B. WILSON, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Sam Mirkin, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Robert f. Colker, Asst. Atty. Gen., for appellee.

ARTERBURN, Justice.

A Jury convicted Appellant of Murder While in the Commission of a Felony. IC 1971, 35--13--4--1 (Burns Ind.Stat.Ann. § 10--3401 (1974 Supp.)). He appeals from the overruling of his Motions to Correct Errors.

The first issue which Appellant raises is the sufficiency of the evidence upon which he was convicted. John Buck testified that on December 22, 1972, he and Appellant robbed Becky's Bar and that in the course of the robbery one of the patrons got up from his bar stool and started to walk toward the Appellant. The Appellant shot this man with the sawed-off shotgun which Appellant was brandishing. Appellant suggests that the credibility of witness Buck is slight because in return for his testimony witness Buck was charged only with Committing a Felony While Armed. The credibility of witnesses is for the trier of fact. Blackburn v. State, (1973), 260 Ind. 5, 291 N.E.2d 686, and cases cited therein. Regardless of why the witness testified, there is nothing in the record which casts doubt upon the truthfulness or accuracy of his testimony. This testimony alone was sufficient to support a conviction. Appellant suggests that there was a failure of identification because no witness pointed to the Appellant and identified him as the robber and murderer. However, witness Buck said that Johnie Wilson was the defendant in the courtroom and the man who killed the tavern patron. Appellant does not deny he was the defendant in the courtroom while Buck was testifying. The identification was sufficient.

Appellant filed a plea of not guilty by reason of insanity. He was examined by two physicians who testified at trial. IC 1971, 35--5--2--2 (Burns Ind.Stat.Ann. § 9--1702 (1974 Supp.)). There was competent lay testimony on how Appellant acted prior to, during, and after the crime. Blake v. State (1975), Ind., 323 N.E.2d 227. From all this evidence the jury concluded that Appellant was legally sane at the time of the commission of the crime. The jury's judgment on the factual issue of legal insanity is no different than its judgment on another factual issue. On appeal, we do not judge the credibility of witnesses nor weigh the evidence. We consider only that evidence favorable to the State and reasonable inferences to be drawn therefrom. Blake v. State, supra.

This evidence is that one of the examining physicians, Dr. Stanton, testified that the Appellant, when not influenced by heroin, could tell right from wrong. Appellant, a heroin addict, seizes upon tis qualification and claims that his ability to tell right from wrong was diminished by his use of heroin. However, witness Buck testified that Appellant had last taken heroin about five (5) hours prior to the crime and that Appellant was acting 'normal'; that is to say, neither 'high' from the 'fix' nor 'sick' with the need for a new 'fix.' Buck said that at the time of the crime he, also an addict, knew right from wrong. The jury was entitled to credit the testimony of an experienced addict that the mere ingestion of heroin does not create an insane person. The jury was not required to believe in the spectre of 'dope fiends'--people who rob and shoot other people because the drug 'makes' them do it.

Appellant presents the testimony of Dr. Stanton in regard to Appellant: 'There is a strong possibility, not confirmable due to lack of adequate information, that he may have been mentally ill at time time of the crime, most likely for reasons of alcoholism combined with heroin effects.' Another physician, Dr. Metcalfe, testified that Appellant would be unable to tell right from wrong and unable to 'form' his conduct to a standard of right or wrong. Both physicians testified that Appellant was of an extremely low intelligence.

Without a doubt this evidence is susceptible to varying interpretations. Nevertheless, the jury performed its solemn duty and decided that Appellant was legally responsible for his conduct. Our law is that:

'a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.'

Hill v. State (1969), 252 Ind. 601, 614, 251 N.E.2d 429, 436. A jury may properly credit the testimony of lay witnesses over that of expert witnesses. Blake, supra, Hill, supra. We can not say that the finding of the jury on the question of Appellant's sanity was not based on substantial evidence of probative value.

Appellant's second contention is that Exhibit 13, a barrel of a 20-gauge shotgun, and Exhibit 14, a box of 18 shotgun shells, were improperly admitted into evidence over his objections. These items were seized pursuant to a search warrant which authorized a search of Appellant's residence. Appellant in his Brief argues that the search warrant procedure was defective on four grounds: (1) the affidavit failed to state when the hearsay information was received by the affiant; (2) the affidavit failed to state facts from which the affiant had reason to believe that the 20-gauge sawed-off shotgun and pieces of barrel were at the home of Appellant; (3) the warrant was not issued by a neutral and detached magistrate; (4) the warrant was not properly returned. The affidavit in question is as follows:

'Edwin M. Bigda, being duly sworn upon his oath for purpose of obtaining a search warrant in the above cause states:

1. That he is an officer of the Michigan City Police Department, Michigan City, Indiana.

2. That he has reason to believe, through information obtained from one Joel Clay, who has given information in this cause prior to this time which has been reliable and corroborated by investigation as to the involvement of one Johnny B. Wilson in the robbery and shooting death of one Russell Peus on the 24th day of December, 1972. Specifically, Joel Clay lives next door to the home of Johnny B. Wilson on Union Street in the city of Michigan City and that he sold to Johnny B. Wilson on the 22 day of December a box of 20 gauge shotgun shells and saw in the possession of Johnny B. Wilson a 20 gauge shotgun. He also saw at the home of Johnny B. Wilson, the 20 gauge shotgun sawed off by Wilson. He later on the same day went to test fire the 20 gauge sawed off shotgun in Springfield Twp., LaPorte County with Johnny B. Wilson. On December 23, 1972 at approximately 10:30 AM Clay was in the accompany (sic) of Wilson, one John Buck and one Eddie Evans on a trip to Gary, Indiana at which time Wilson admitted that he was involved in the robbery of Russell Peus and that he shot Russell Peus with the 20 gauge sawed off shotgun.

3. That he has reason to believe that Joel Clay has spoken with personal knowledge of the matters contained herein in that he had previously stated that a badge taken from Russell Peus in the course of the robbery would be found in a trash can in Gary, Indiana and that upon investigation on December 29, 1972, Cpl. Stephen Bacztub, Cpl. Robert Bell and James Webb of the Michigan City Police Department found a badge containing the name R. Peus, Michigan City Fire Department, in the location described by Joel Clay.

4. That your affiant on the basis of the above information has reason to believe that the 20 gauge sawed off shotgun described above and that pieces of the barrell (sic) of said weapon and/or metal shavings from the sawing of the barrell (sic) of said weapon are located at the home of Johnny B. Wilson at 212 Union St., Michigan City, Indiana and that this location may be physically described as a one story frame home, green in color.

5. That this affidavit is now made for the purpose of obtaining a Search Warrant from this Court to examine said home in it's entirety to search for the aforementioned articles.'

This affidavit is dated December 29, 1972. The search warrant was issued and executed the same day. There is no requirement that the affidavit must state when hearsay information was received by the affiant. IC 1971, 35--1--6--2 (Burns Ind.Stat.Ann. § 9--602 (1974 Supp.)). Appellant is apparently arguing that since the informant gave information that the shotgun was in the residence on December 22, 1972, there was not probable cause to believe that the shotgun would be in the same place seven days later. Appellant suggests that the situation here is analogous to the one in Ashley v. State (1968), 251 Ind. 359, 368, 241 N.E.2d 264, 269:

'Although there can be no precise rule as to how much time may intervene between the obtaining of the facts and the issuance of the search warrant, in dealing with a substance like marijuana, which can be easily concealed and moved about, probable cause to believe that it was in a certain building on the third of the month is not probable cause to believe that it will be in the same building eight days later. Therefore, since the affidavit only made a showing of probable cause existing on October 3, 1964, and not on October 11, 1964, when the search warrant was issued the search warrant was defective and it was error to deny appellants' motions to quash the affidavit for the search warrant and to suppress the evidence thereunder seized.'

Appellant compares a sawed-off shotgun to marijuana in terms of ease of concealment and mobility, the categories stressed in Ashley. We think the differences between the two situations are more significant. Not only is marijuana more easily concealed and more easily moved about than a sawed-off shotgun, it is common knowledge that marijuana, the mere possession of which is illegal, is frequently and continuously bought, sold, bartered and consumed. Thus, it is...

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