Beasley v. State

370 N.E.2d 360, 267 Ind. 396, 1977 Ind. LEXIS 511
CourtIndiana Supreme Court
DecidedDecember 16, 1977
Docket576S155
StatusPublished
Cited by53 cases

This text of 370 N.E.2d 360 (Beasley v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beasley v. State, 370 N.E.2d 360, 267 Ind. 396, 1977 Ind. LEXIS 511 (Ind. 1977).

Opinion

Prentice, J.

Defendant (Appellant) was charged by grand jury with Second Degree Murder in the death of Fred Romig. He was convicted by a jury of Second Degree Murder and sentenced by the judge to life imprisonment. On appeal the defendant presents the following issues:

*398 (1) Whether the evidence was sufficient to sustain a verdict of guilty.

(2) Whether the trial court erred in refusing to give defendant’s tendered instructions, designated Nos. 1, 5 and 7.

(3) Whether the trial court erred in admitting into evidence the defendant’s prior record.

(4) Whether the trial court erred in imposing a sentence of life imprisonment for Second Degree Murder, the jury having failed to specify the sentence in their verdict.

ISSUE I

The defendant raises as his first error the sufficiency of the evidence upon which the verdict was based. The evidence as viewed most favorably to the State, includes the eyewitness testimony of three witnesses who stated that they saw the scuffle and beating of the decedent. Although none of the witnesses could positively identify the defendant as the assailant, each testified that he saw only two persons and that the attacker fit the general appearance of the defendant. Additional testimony was given by a police officer who placed the defendant in the neighborhood at the time of the murder. Defendant in his testimony, admitted to having been at the scene at the time of the murder and to having held one of the murder weapons, a lantern, in his hand. One fingerprint later taken from the lantern was identified as that of the defendant. The State’s evidence and that of the defendant was irreconcilable in but one particular. The defendant testified that there was a third party present who attacked the decedent, whereas the State’s eyewitnesses testified that they saw only the decedent and his assailant.

The standards used to determine the sufficiency of the evidence on review have been frequently and clearly stated by this Court as follows:

*399 On appeal, this Court will not judge the weight of the evidence or the credibility of the witnesses. Robinson v. State, (1977) 266 Ind. 604, 365 N.E.2d 1218; Rosell v. State, (1976) 265 Ind. 173, 352 N.E.2d 750; Lottie v. State, (1974) 262 Ind. 124, 311 N.E.2d 800.

Further, in Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d 831, it was stated at p. 834:

“When the sufficiency of the evidence is raised as an issue upon appeal, this Court will consider only that evidence of probative value most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. If such evidence and inferences would permit a reasonable trier of fact to find the existence of each element of the crime charged beyond a reasonable doubt, the verdict will not be disturbed.”

The defendant alleges that the inconclusive identifications of the defendant by the State’s witnesses were insufficient evidence of his guilt. In support of his contention he cites Gaddis v. State, (1969) 253 Ind. 73, 251 N.E.2d 658, for the proposition that such an uncertain identification is insufficient by itself to prove the defendant’s guilt. In the instant case however, the identifications were not the only evidence brought forth at trial. Defendant’s own words put him at the scene as one of the people present, and his fingerprint was found on the lantern with which the decedent had been struck. It has been held in previous cases that an identification can be made by the surrounding circumstantial evidence. Ellis v. State, (1969) 252 Ind. 472, 250 N.E.2d 364.

Although the defendant correctly contends that evidence sufficient only to establish a mere suspicion of guilt is not sufficient to support a conviction, Thomas v. State, (1958) 238 Ind. 658, 154 N.E.2d 503, we are not here faced with evidence so scant as that presented in Thomas. The evidence was such that a reasonable trier of fact could have found beyond a reasonable doubt that the defendant was guilty, and it was the prerogative of the jury *400 to believe that version presented by the State and to disbelieve that presented by the defendant. Williams v. State, (1976) 264 Ind. 441, 346 N.E.2d 579; Winston v. State, (1975) 263 Ind. 8, 323 N.E.2d 228.

ISSUE II

At the close of evidence defendant tendered certain instructions to the court, the refusal of which he now cites as error. Tendered instruction No. 1 advised the jury that two inconsistent but equally reasonable interpretations of the evidence must be resolved in favor of the defendant’s innocence. Tendered instruction No. 5 informed the jury that if they should find that there had been an unlawful killing, but there was a reasonable doubt as to whether it was murder or manslaughter, then the defendant must be given the benefit of such doubt and a finding of manslaughter returned. Tendered instruction No. 7 stated in part, “An identification made by a stranger, without a sufficient opportunity to definitely fix features or characteristics, must be an opinion or conclusion of the identifying witness.”

Although the court refused these instructions, Defendant was not prejudiced to any degree since the subject matter of 1 and 5 was covered in other instructions given by the court. As this Court has previously stated, the failure of a trial court to give a tendered instruction is not reversible error if the substance of the instruction is adequately covered in other instructions given by the court. Bricker v. State, (1976) 264 Ind. 186, 341 N.E.2d 502; Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770. Specifically, the court’s instructions Nos. 2, 3 and 4 informed the jury that manslaughter is a lesser included offense of second degree murder and that should the jury have any reasonable doubt as to the defendant’s guilt of either the crime charged or any of its lesser included offenses, he must be acquitted.

*401 Defendant’s tendered instruction No. 7 could not have been properly given. We have previously stated that the trial court should not single out the testimony of any witness and attack its credibility or indicate an opinion as to the weight that should be accorded to it. Hackett v. State,

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Bluebook (online)
370 N.E.2d 360, 267 Ind. 396, 1977 Ind. LEXIS 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beasley-v-state-ind-1977.