Wilson v. State

• Citation: 247 Ind. 454,217 N.E.2d 147
• Decision Date: 13 June 1966
• Docket Number: No. 30522,30522
• Parties: John Lewis WILSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 147

217 N.E.2d 147

247 Ind. 454

John Lewis WILSON, Appellant, v. STATE of Indiana, Appellee.

No. 30522.

Supreme Court of Indiana.

June 13, 1966.

Olsen & Niederhaus, Evansville, Robert H. Rideout, Boonville, for appellant

John J. Dillon, Atty. Gen., Douglas B. McFadden, Wilma T. Leach, Deputy Attys. Gen., for appellee.

ARTERBURN, Judge.

The appellant was charged witht he crime of murder in the first degree, filed an answer of insanity, pleaded not guilty and was found guilty of murder in the second degree. He was sentenced to imprisonment in the state prison for life.

The assignment of errors states:

1. The court erred in overruling the appellant's motion for a new trial.

2. The court erred in overruling appellant's motion to quash.

3. The court erred in allowing the State to amend the indictment.

Under Rule 2--6 of this Court, the latter two separate specifications are not proper assignments of error unless presented as items in the motion for a new trial. Rule 2--6 provides in substance that any error relied upon, 'however and whenever arising up to the time of filing of such motion' (motion for a new trial), if relied upon as error on appeal, must be assigned in the motion for a new trial. Items 2 and 3 therefore are not before us for consideration on appeal.

We come to the consideration of the items in the motion for a new trial presented to us on this appeal. It is first urged that the court erred in overrulign defendant's motion to suppress certain evidence obtained in a search of the decedent's home, which the appellant claims was his home temporarily.

Briefly, the evidence shows that the appellant went to the apartment of the decedent, looking for Ruth Miller. This was on Saturday, January 21, 1962 in the evening. He and the decedent started drinking and both got into a quarrel or argument about Ruth Miller and started fighting. The appellant struck the decedent with his fist and with a skillet, apparently injuring him, and he put him in bed. The next morning the decedent was suffering and groaning and the appellant said he decided to put him out of his misery and turned on the gas. When he returned a few hours later the decedent was still alive so he stabbed him three times, but did not kill him. The next morning, Monday, January 23, he finally shot the decedent. He said he held a gun to the decedent's head and pulled the trigger.

A motion to suppress evidence as to State's exhibits 10--A, B, C and D and State's exhibit 11 was made during the trial. The court heard this evidence and overruled it. In the first place, the brief in the discussion of this motion does not set out what the State's exhibits were and in what way, if at all, they were prejudicial to the appellant. It is claimed these exhibits were obtained by the unlawful search of the decedent's premises at the time he was found dead in his apartment.

The trial court heard the evidence, which briefly showed that Officer Basham, while on duty on January 23, had a call that an accident had taken place on Mary Street at the decedent's own apartment. When he got there he was told to go upstairs. This was about 9:00 a.m. He had no search warrant and was making no arrest at the time. The evidence does show that the appellant also lived at another home in the City of Evansville. Appellant stated he had just recently returned to Evansville and decedent had invited him to spend 'the week end' at the decedent's apartment. The court had to determine from the evidence the fact as to whether appellant was merely a transient by invitation at decedent's home when he killed him or was a resident thereof, immune against an unauthorized search. There was sufficient evidence for the court to conclude that appellant was only a temporary visitor on the evening of the drinking and fighting. The evidence also shows the officer was invited into the premises by some one in charge after decedent was found dead as the result of violence.

In our opinion, it would be an absurd interpretation of the law to say that a police officer informed of a homicide, should first have to obtain a search warrnt to visit the apartment or home where the victim of the killing lay dead. Certainly the law does not hamstring the normal and emergency activities of police officers in their attempt to apprehend criminals to that extent. Alertness and promptness are to be commended on the part of law enforcement officers.

In this case a man lay dead as a result of violence inflicted upon him in his own apartment. Any police officer who sees or is informed of such a condition has not only the right, but the duty, to make an instant and prompt investigation. To say that someone, a visitor, who was temporarily on the premises by invitation at the time of the death of the victim, thereby acquires a constitutional right to insist upon a search warrant being first procured--while he flees from the scene, as in this case--is stretching constitutional interpretation to an absurdity.

Too frequently we over-emphasize the technical interpretation of a constitutional provision and overlook the major objective of the instrument, namely the protection of the public against internal and external enemies. The preamble to the Indiana Constitution states it was ordained '* * * that justice be established, (and) public order maintained, * * *'; the United States Constitution to '* * * establish justice, insure domestic tranquility, * * *' Law-abiding citizens are entitled to the protection of the Constitution against the criminal elements in society to as great, if not greater extent than the criminal. Too frequently we forget constitutional rights of citizens and victims of crime who constitute the public, thinking only of the criminal's rights, to the injury and breakdown of the effective enforcement of the law and to the detriment of 'domestic tranquility' and 'public order' as ordered by the Constitutions.

Courts have had their difficulties in this field in defining the laws of search and seizure and balancing the public's right to protection against crime as against the rights of privacy of the individual.

Whether a guest of the owner of the premises may complain about an illegal search of a room in which he is staying has been a confusing question for the courts. McDonald v. United States (1948), 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; In re Nassetta (1942), 125 F.2d 924 (2d Cir.); Gibson v. United States (1945), 80 U.S.App.D.C. 81, 149 F.2d 381.

To designate such a person as a casual visitor or a temporary visitor or a guest is not an answer or aid in laying down a very definite rule in such situations involving search and seizure. However, regardless of how we characterize the appellant's occupancy of the room in question on the night of the murder, we find whatever right he had in objecting to a search was certainly terminated by his own actions, namely, the killing of his host and the possessor of the premises to which he was invited and his fleeing and abandoning the premises after the killing. The invitation of the decedent had also ended with the termination of 'the week end'.

In Abel v. United States (1960), 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 the court held that after the occupant of a hotel room had left, a search by the FBI of a wastebasket in the room and the discovery of material evidence was legal.

We find in the case of Feguer v. United States (1962), 302 F.2d 214 (8 Cir.), cert. denied 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110, that a like search of a room previously occupied and vacated by a defendant following a murder was legal. See: Annot., 86 A.L.R.2d 984, 993 (1962).

A person present by invitation, or as a temporary visitor, does not acquire rights in the premises against search after he has killed his invitor or host and has fled the premises. Certainly there could be no more final manner of terminating the invitation and visit and forfeiting all rights of occupancy than in the manner described.

In Vanover v. Commonwealth (Ky.1951), 237 S.W.2d 539, 542, in a situation much the same as here in a homicide case, the court said:

'* * * Though these men had taken over this apartment as their hideout or as The trial court did not err in overruling the motion to suppress the evidence.

guests, it is very certain that the next day when the search was made they had surrendered whatever possession they had obtained by intrusion. Their things were not searched; they were simply found. There is no merit whatever in this contention.'

The next contention made by the appellant is that the court erred in permitting

'a four page handwritten document, * * * purportedly and allegedly written by the defendant to be introduced into evidence over the objections of the defendant after the defendant had shown evidence whcih proved the documents to be incompetent, and said evidence was uncontradicted by the State.'

and further:

'the court permitted to be introduced into evidence a typed one page document, * * * which was not the product of the defendant and was therefore incompetent.'

The specification in the motion for a new trial does not identify the exhibits referred to by the number or letter or any other fashion under which they were designated at the trial, nor does the motion set out specifically the objections, but only states in general terms that they were 'incompetent'. In referring to the argument section of the brief where these points were taken up, it is there contended that the court committed error in permitting 'the introduction into evidence of State's Exhibits 10--A, B, C, D and 11.' These particular exhibits, we are to assume, are those referred to in the motion for a new trial. Neither do we have the specific objection set forth in the argument section of the brief. The rules of this Court require that objections to the introduction of evidence must be specific and not general. 1 Flanagan, Indiana Trial and Appellate Practice, Sec. 1993,...