Hutchinson v. State

225 N.E.2d 828, 248 Ind. 226, 1967 Ind. LEXIS 424

• Court: Indiana Supreme Court
• Decided: May 5, 1967
• Docket: 30,693
• Status: Published

Opinions

Mote, J.

Appellant, James David Hutchinson, and one Karen Janet Dodd, were indicted jointly by the Grand Jury of Marion County, Indiana, on January 25, 1962, and charged with the first degree murder of one, Karrie Dodd, which indictment, omitting the formal parts, was as follows:

“The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that Karen Janet Dodd and James David Hutchinson on or about the 13th day of October, A.D. 1961, at and in the County of Marion and in the State of Indiana, did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder, Karrie Dodd, a human being by then and there unlawfully and feloniously, purposely and with premeditated malice, striking and beating at and against the body of the said Karrie Dodd, and did then and there and thereby inflict a mortal wound in and upon the body of the said Karrie Dodd, of which mortal wound the said Karrie Dodd, then and there and thereby died.

And so the Grand Jurors aforesaid, upon their oaths aforesaid, do say and charge that the said Karen Janet Dodd, and James David Hutchinson, in the manner and form and by the means aforesaid, unlawfully, feloniously, purposely and with premeditated malice did kill and murder the said Karrie Dodd, then and there being.”

The parties were arrested and placed in jail. Efforts were made to release both by habeas corpus proceedings and by petition to be let to bail.

Eventually James David Hutchinson, one of the defendants, was tried separately by a jury who returned the verdict of guilty of second degree murder. Upon such judgment comes this appeal, after denial of motion for new trial. The assignment of errors, omitting the formal parts, is as follows:'

“The Appellant avers that there is manifest error in the judgment and proceedings in this cause, which is prejudicial to the Appellant, in this:

1. The Court erred in overruling the Appellant’s Motion for instructions to withdraw from the jury the issue of first degree murder and to discharge the Defendant from said offense.

2. The Court erred in overruling the Appellant’s Motion for instructions to withdraw from the jury the issue of second degree murder and to discharge the Defendant from said offense.

3. The Court erred and abused its discretion in denying the Appellant’s motion for instruction to withdraw from the jury the issue of second degree murder and to discharge the defendant from said offense, made at the conclusion of the opening statement by the prosecuting attorney for the State of Indiana.

4. The Court erred and abused its discretion in requiring the jury, when at the commencement thereof they were already physically and mentally depleted and fatigued, to continue deliberations for a period of more than five hours, from approximately 10:05 p.m., on April 16, 1964, until approximately 3:30 a.m. April 17, 1964, without providing said jurors with facility for rest and refreshment, and denying to them a night of sleep and renewal of mental and physical strength, so that said jurors were rendered deficient in power and capacity to give full, adequate, and fair consideration to the evidence and to the law in their deliberations upon said case, whereby the defendant-appellant was deprived of a fair and impartial verdict.

5. The Court erred in overruling and denying the Appellant’s Motion in arrest of judgment.

6. The Court erred in disregarding the written statement of legal cause for not pronouncing sentence filed by the defendant-appellant on August 6, 1964.

7. The Court erred in sentencing the Appellant to the Indiana State Prison for life without pronouncing judgment on the verdict of the jury.

8. The Court erred in overruling the Appellant’s Motion for a new trial.

9. The Court erred in sustaining the motion of Noble R. Pearcy, Prosecuting Attorney for the Nineteenth Judicial Circuit, to enter a Nolle Prosequi to the indictment against Karen Janet Dodd, joint co-defendant with James David Hutchinson for the reason: ‘was re-submitted to the Grand Jury and no-billed’ without first setting aside and verdict of the jury against the defendant-appellant James David Hutchinson and revoking the sentence imposed against said defendant, the appellant herein.’’

The decision herein necessarily must hinge upon the sufficiency of the evidence. The record indicates that appellant was born in Indianapolis and enlisted in the Army, received training in various Army camps, and was sent to Korea after active hostilities had ceased where he spent thirteen months, after which he was returned to the United States and was stationed at Fort Lewis, near Seattle, Washington. Pending his discharge from the service he met Karen Janet Dodd, his codefendant, at a public dance hall and they promptly became intimately acquainted. Prior to his discharge the two of them had intimate relations at the home of her parents, in her own apartment, and at places of residence of her friends. After some time had elapsed, he proposed marriage and she then told him that she was married at the age of fifteen to one who was stationed on the East Coast and serving in the Navy, and that she had a child, Karrie Dodd, the decedent, then approximately three years of age.

The record is not exactly clear as to the date of discharge of appellant from the service, but thereafter appellant, together with Karen Janet Dodd and her daughter, Karrie Dodd, drove to El Paso, Texas, to see his mother and stepfather. They spent a week or ten days with them when trouble developed. Appellant’s mother began to doubt lawful marriage of the two and also criticized the mother for her cruelty to the deceased. They then came to Indianapolis where appellant had a number of relatives with some of whom they first lived. For a short while thereafter, they resided in an apartment on North Alabama Street, in the City of Indianapolis, in an upstairs apartment of a building, which contained two upstairs apartments and two lower apartments, and was owned by a relative.

On Friday, October 13, 1961, appellant, then being an apprentice bricklayer, reported for duty, but due to the inclemency of the weather work ceased at about three o’clock. However, it appears that he remained at the job for about one-half hour to get the pay check due him.

Little Karrie Dodd was being attended that day by a baby sitter, who in her own home also looked after several children. Appellant picked up little Karrie around 3:40 p.m. to 4:00 p.m. on that date and took her to their home on Edison Street. Apparently appellant had a date to meet Karen Janet Dodd, his codefendant, at her work at about 5:00 p.m. to 5:30 p.m. and, in preparation to do so, he not only looked after his own personal hygiene and clothing changes, but he also gave a bath to little Karrie. When her ablutions were completed, appellant dressed the little girl in her pajamas and took her in his automobile to pick up her mother at work. It developed afterward, as the three of them were on the way to market, that little Karrie was suffering agony for some then undisclosed reason. Appellant and Karen Janet Dodd altered their course and went to one of his relatives in order to call a physician. Such relative was not at home. They drove to the home of another of appellant’s relatives who, after one look at the child, stated in effect “this child is very, very ill and you should take her immediately to the hospital.” They promptly started to Community Hospital, and observing that the child was in extreme agony and almost unable to breathe, appellant, who was driving the automobile, and Karen Janet Dodd exchanged seats so the appellant could and he did attempt administering mouth to mouth resuscitation. Upon arrival at the hospital, or soon thereafter, the child was pronounced dead.

Suspicions were aroused and authority for an autopsy was sought and obtained from appellant and the mother. Statements were taken and both appellant and codefendant were arrested and placed in jail. Thereafter, they were indicted, as above stated.

The mother of the child at all times, until a short while before the trial of the appellant, maintained that appellant always had been kind to and had exhibited a loving disposition toward the child. Although appellant had been released from incarceration, his codefendant was not released until after she changed her statement to the authorities, wherein she recited a long history of abuse by appellant to the child. Indeed* there was testimony that the child, particularly in the later days of her life, showed bruises on the temple and cheeks, as well as abrasions on the nose, but until Friday, October 13, 1961, the injuries to the child did not appear to be of real significance when measured by the injury done to the child on that date.

Evidence disclosed at the trial indicated that the child bore twenty-five or thirty marks such as could be inflicted by use of a belt, with the buckle on the end of the pendulum. There was a laceration of the liver, which could be caused by a blow from a blunt instrument, which led to speculation that the appellant may have hit the decedent with his fist. Except for the crying by the decedent, heard by the neighbors, and the lashing with a belt, admitted by appellant, the evidence is not too clear concerning just what happened during the period between 3:45 p.m. to perhaps 5:00 p.m. on October 13, 1961. We have found no evidence that the child was tossed around in the bathtub or in the washbowl where she might have been injured by the fixtures connected therewith. Appellant admitted that he used a belt to punish the little girl, but there appears to be no testimony which would account for the lacerated liver, except that the medical expert witness did speculate that such injury could have been caused by a sharp blow with a fist.

Despite the fact that the mother, a self-confessed perjurer and adultress, and child had returned to her native State of Washington for a couple of weeks during the summer of 1961, where she and the child could have remained, if her representations to the jury were correct that appellant was mean to and abused the decedent, she apparently voluntarily returned to Indiana and took up her life where she had left it.

We are not unmindful of the serious crime here committed, as shown by the evidence, and we have read the entire transcript of testimony to ascertain whether the evidence is such that the verdict and judgment should be sustained. From our appraisal of the evidence, not by its weight but by the lack of it, we are not persuaded that the evidence meets the test and definition of second degree murder wherein reasonable people can be certain beyond a reasonable doubt that appellant purposely and maliciously killed the decedent. To survey the cold record and to study it leads us to the conclusion that a conviction of second degree murder would necessitate an inference upon a speculation, which the law does not permit.

In this case, we have but a few months immediately prior to October 13, 1961, for the consideration of the deeds of appellant and the codefendant, mother of the deceased, as such deeds relate to the death of the little girl. Before we enter into our discussion of such deeds and the occurrences, we want it strictly understood that in our consideration thereof, we “will not weigh evidence when its sufficiency is questioned on appeal, but will examine the record to determine whether there is any evidence of probative value, or any reasonable inferences which may be properly drawn therefrom, which would sustain the verdict of the jury or the decision of the trial court.” Mattingly v. State (1952) 230 Ind. 431, 438, 104 N. E. 2d 721, 726; Cross, Jr. v. State (1956) 235 Ind. 611, 614, 137 N. E. 2d 32; Miller v. State (1962) 242 Ind. 678, 680, 181 N. E. 2d 633.

We also recognize the principle that if the verdict is supported by substantial evidence of probative value, it will not be disturbed on appeal. Schlegel v. State (1958) 238 Ind. 374, 378, 150 N. E. 2d 563.

So far as the record discloses, we are not dealing with a so-called deadly weapon used in such a manner as likely to cause death. Landreth v. State (1930) 201 Ind. 691, 697, 171 N. E. 192; 72 A. L. R. 891; Dickinson v. State (1944) 222 Ind. 551, 555, 55 N. E. 2d 325.

If we are to give full consideration to the one instrument, a belt, which admittedly was used, and to the second instrument, a fist, which was suggested to have been used to injure the decedent, we would be inclined to hold that the use of such belt neither brought about death nor was it a deadly weapon, per se. If we apply reasoning to the facts at hand, we would be required to speculate not only that the fist was used, but also that it was used in such a manner as likely to produce death. Murphy v. State (1869) 31 Ind. 511, 514; Landreth v. State, supra; Schlegel v. State, supra; Myles v. State (1955) 234 Ind. 129, 133, 124 N. E. 2d 205.

Having to speculate that the suggested weapon used was a fist, that it was a deadly weapon, and that it was so used as likely to produce death in order to meet the test of the statutory definition of second degree murder of which appellant was convicted, we then would have to infer the existence of purpose to kill and malice, conjointly used.

Furthermore, from the expert witness who suggested that a sharp blow from a fist could have lacerated the liver from which injury the decedent died, there is a great number of possibilities and a vast array of speculations as to how the liver organ was lacerated—in fact, they are almost boundless. We all know that injuries in and about bathtubs, showers and lavatories occur and appear to increase from year to year, and various statistics are available to support such statement. Falling in the bathtub, over the rim of same, falling against plumbing fixtures, slippery soap and water conditions, and physical weaknesses all take their toll, just as riders in automobiles receive injuries because of faulty engineering and design. There is no doubt that the little girl’s liver was lacerated, but there is no substantial proof as to how the same was lacerated. That such injury may have occurred during the time she was having her bath is not doubted, but in order to find the necessary statutory purpose and malice for a second degree ihurder conviction, we cannot conceive by speculation that appellant’s fist was used in such a manner as to lacerate the liver, when considering the broad spectrum of possibilities.

To conclude that either purpose or malice may be inferred because of the long history of abuse to the little girl by appellant, as testified to by appellant’s codefendant, would not be reasonable, particularly in view of the many statements which she made that appellant had always exhibited kindness and love for her child, as well as the mute evidence contained in one of the exhibits—a photograph of the backseat of the automobile which displays at least one toy or plaything for the decedent.

Despite the fact that there are authorities which may appear to indicate otherwise, to-wit: Indian Creek Coal, etc., Co. v. Calvert (1918) 68 Ind. App. 474, 119 N. E. 519, 525, 120 N. E. 709; Orey v .Mutual Life Insurance Co. of N.Y. (1939) 215 Ind. 305, 19 N. E. 547, we think we are required to hold that the facts in this particular appeal will not permit inferences upon a speculation. In treating the subject of whether an inference may be drawn from an inference, it was said in Orey v. Mutual Life Insurance Co. of N.Y., supra, at p. 309: “There is no such rule; nor can be,” that is, there is no rule against drawing an inference from an inference, citing as authority Wigmore on Evidence, 2d Ed., Vol. 1, § 41, pp. 258, 259.

Quoting further from Orey v. Mutual Life Insurance Co. of N.Y., supra, it is said:

“In an extensive note on the subject in 95 A.L.R., p. 162, it is said on page 182: Tt seems clear, after examination of all of the cases which have discussed the question, that there is no such general rule in the sense in which the language itself implies, and that if, in a sense, such a rule may be said to exist, the phraseology used to express it is inaccurate and misleading, and the meaning is quite different than appears upon its face. The courts have apparently often used this phraseology merely as a convenient way of disposing of evidence which it regarded as too remote or uncertain to prove the ultimate facts at issue. The language has become a sort of judicial slogan, used carelessly, inaccurately, and to the confusion of the profession. The statement of the .rule in many of the cases, that an inference cannot be based on an inference, shows that what is meant primarily is that an inference cannot be based upon evidence which is uncertain or speculative, or which raises merely a conjecture or possibility.’ In the instant case, if the testimony of the expert, who said that the hernia could have been caused by violent external means only, is eliminated, it leaves only the evidence that it might have been caused either by violent external injury, which might be assumed to have been accidental, or by an unusual strain, which might be assumed to have been the result of a voluntary act. The jury might infer that it was one or the other, but a determination without further evidence that it was one rather than the other would depend upon mere speculation or guess, and the trior of facts is not permitted to indulge in such inferences. A fact may sometimes be established by circumstantial evidence more firmly and thoroughly than by direct but conflicting evidence, and when a fact is so established by inference it is as logical and reasonable a basis for further inference as a fact established by direct evidence.”

Although we have cited above a statement concerning the drawing of an inference upon an inference, which appears to be proper, at least under certain conditions and circumstances, the fault we find with the evidence in this case, from a legal point of view, is that the jury was required to speculate on an inference or speculate on speculation, which often leads to error, and in this case we think it did lead to error.

The difference between the definitions of first degree murder and second degree murder, as defined by our Statutes, is not broad. In first degree murder, there must be premediated malice, and in second degree murder, there must be both purpose and malice, and as above stated, malice may be inferred. The use of a deadly weapon may be sufficient to infer malice, but we are inclined to view that proof of purpose, although permitted by circumstantial evidence, will not permit speculation.

We reached the conclusion herein that the facts and inferences to be drawn therefrom, as shown by the record, properly lead only to a reasonable conclusion by reasonable people, beyond a reasonable doubt, that appellant was guilty only of using excessive means of punishment of a child, which excessive means brought about her death, and that the only reasonable conclusion which may be drawn from the evidence and necessary inferences is that the appellant was guilty of involuntary manslaughter.

This Court cannot and does not concern itself with the credibility of the mother of the decedent. The fact that she was an admitted perjurer and guilty of adultery can have only our passing observation. The fact remains in our minds that this appellant was guilty only of involuntary manslaughter, as shown by substantial evidence. Manslaughter being an includable offense (see: Ritchie v. State (1963) 243 Ind. 614, 189 N. E. 2d 575) in the charge or indictment against appellant, it is now directed that the trial court modify its judgment and verdict of the jury, finding appellant guilty of second degree murder, by reducing it to a lesser included offense of involuntary manslaughter under' Burns’ Stat. § 10-3405 and to sentence appellant accordingly.

Arterburn, C. J. and Myers, J., concur. Hunter, J., dissents, with opinion. Jackson, J., not participating.