Maxey v. State

244 N.E.2d 650, 251 Ind. 645, 1969 Ind. LEXIS 409

• Court: Indiana Supreme Court
• Decided: February 20, 1969
• Docket: 867S61
• Status: Published

Opinions

Hunter, J.

The appellant was charged by indictment with the crime of murder in the first degree. He entered a plea of not guilty, and was tried by a jury. He was found guilty of murder in the second degree and sentenced to the Indiana State Prison for life.

The appellant timely filed an extensive motion for a new trial which was overruled by the trial court. His sole assignment of error to this court is the overruling of that motion. In his brief the appellant urges five objections to the procedure in the trial court as grounds for our reversing his conviction :

1. The trial court erred in overruling defendant’s motion to suppress evidence filed prior to trial and in permitting witnesses on behalf' of the state to answer questions at the trial pertaining to what they saw, heard and found upon entering defendant’s home.

2. It was prejudicial error for the trial court to have overruled appellant’s motion to strike the testimony of police officers concerning admissions made by appellant to officers following their custodial interrogation of appellant where there was no showing by the state that appellant voluntarily, knowingly and intelligently waived his right against self-incrimination.

3. It was abuse of the trial court’s discretion, resulting in prejudicial error for the trial court to have permitted the state at the close of its evidence and after resting to reopen its case after the trial court had found that defendant’s motion for a directed verdict for the reason that the state had failed to prove venue was well taken and that the state in fact had not proved venue.

4. The trial court erred in refusing to give defendant’s tendered instruction number 4 concerning the subject of rebutting a presumption of malice from the act of killing by proof that killing resulted from sudden passion, where there was no other instruction given which properly covered the law of such instruction.

5. The verdict of the jury was contrary to law and not sustained by sufficient evidence for the reason that the state failed to prove that the killing was with malice and purpose.

The first two objections require a recital of the evidence relating to the appellant’s arrest.

On November 24, 1966, at about 7:29 a.m., Indianapolis police officers Bowman and Phillips received a radio call to proceed to 1812 Koehne “on a disturbance.” The officers defined a “disturbance” as a breach of peace in a neighborhood or a house, usually amounting to a family argument or fight. Upon arriving at that address, the officers were met at the door by the appellant’s mother. There is a conflict in testimony as to what she told the officers prior to their entering the appellant’s house. Both officers testified that the mother seemed excited and said, “Hurry in, my son’s just killed his wife.” The mother testified that, when the officers arrived, she did not know whether her daughter-in-law was dead or alive, and that she told the officers only that “there’s been a fight” and “follow me.” The officers then followed the mother into the house without having received the appellant’s consent or without having obtained a search or arrest warrant. Officer Bowman testified that at this point he believed that there had been violence in the house and didn’t know if anyone was dead yet or not. He further testified that he did not then know and had made no effort to ascertain any knowledge with regard to who owned the house.

The mother led the officers into the kitchen where they first saw the appellant who turned around, thrust out his arms and said, “Take me away. I just killed my wife.” The officers asked where the victim was and were told by the appellant, “she’s down in the basement, go down and look.” Officer Phillips went to the basement and found the deceased about five feet from the stairs, lying on her back with arms extended. At this time, Officer Bowman placed the appellant under arrest and advised him of his constitutional rights. After calling police headquarters to get a deputy coroner and superior officer to the appellant’s house, Bowman went to the basement to draw a diagram of the scene. The appellant’s stepfather joined Bowman in the basement, identified the victim, and led the police officer to a blood-covered bayonet then located on a washing machine about twenty feet from the body. After having been advised of his constitutional rights by Officer Bowman, and over another officer’s admonitions that he was not required to say anything, the appellant several times repeated “I’ve killed the thing I loved the most.”

The appellant, prior to the trial, filed a motion to suppress all the evidence relating to what the police officers had seen, found or heard while in the appellant’s house. This motion was overruled by the trial court. At the trial the appellant again moved to suppress the testimony of the police officers who were present at the search of the appellant’s home concerning what they had seen, heard or observed during said search. The court also overruled these objections. In his first argument, the appellant contends that this entry into his home constituted an unreasonable search and seizure and that the evidence obtained thereby should have been suppressed by the trial court.

It was the mother and not the appellant who met the police officers at the door and led them into the house. There is authority to the effect that a third party can not waive another person’s constitutional immunity against unreasonable search and seizures. C.f., Dalton v. State (1952), 230 Ind. 626, 105 N. E. 2d 509. Thus, if the entry or subsequent search of the premises by the police officers was unreasonable, the evidence should have been suppressed.

We believe, however, that the entry by the police officers was lawful and justified by the circumstances. While it is true that, as a general rule, a search warrant or a consent is required to allow police officers to enter upon a private dwelling, a well-recognized exception to this general rule is an entry under emergency circumstances. United States v. Jeffers (1951), 342 U. S. 48. In Wilson v. State (1966), 247 Ind. 454, 217 N. E. 2d 147, this court held that, where a police officer was informed that a homicide had occurred in a private dwelling, he could lawfully enter without having to obtain a search warrant. There is good reason for such a rule. Where a violent breach of the peace has occurred, the entry by the police can be justified as a means to prevent further injury or to aid those who have been injured.

In the instant case, prior to their entry into appellant’s dwelling, the police officers were told that there had been a killing or a fight depending on whose testimony is to be believed..In either event, the police had reasonable cause to believe that an injury had occurred. The officers were led into the house by the appellant’s mother, and there is no evidence that any damage resulted to the premises from this entry. We hold that the entry by the police officers into the appellant’s home was justified and reasonable under the circumstances. . .

Furthermore, as soon as a preliminary investigation had revealed the victim’s body, the police officers had probable cause to place the appellant under arrest. When they did so, the appellant was immediately advised of his constitutional rights and was advised several times that he did not have to make any statements regarding what had taken place. After arresting the appellant, the officers were entitled to conduct a further search of the premises as said search was then incident to lawful arrest. It was during this search subsequent to the appellant’s arrest that the blood-covered bayonet was discovered. For the foregoing reasons, we hold that the evidence used in the appellant’s trial was obtained by a lawful search of the premises, and that the appellant’s motions to suppress said evidence were properly overruled by the trial court.

Regarding the appellant’s second objection, the only statement made by him prior to his being advised of his constitutional rights which was admitted into evidence was his exclamation on first seeing the police officers. At this point, it could hardly be contended that the officers were conducting custodial interrogation of the appellant or that the appellant’s rights against self-incrimination were being violated.

In appellant’s third objection, he contends that the trial court committed reversible error in permitting the state to present additional evidence in order to prove venue after it had rested its case and after the appellant had moved the trial court for a directed verdict. The record indicates that the judge had not yet ruled upon appellant’s motion for a directed verdict at the time the state was allowed to introduce this additional evidence. It has long been held that the action of a trial court in allowing a party to reopen its case after it has rested is a matter of discretion for the court, and, unless clear abuse is shown, this court will not interfere with such a decision by the trial court. Roush v. Roush (1900), 154 Ind. 562, 55 N. E. 1017. The appellant has not demonstrated that he was unfairly prejudiced by this procedure, and the only detriment to the defense resulted from a more complete presentation of all the facts relating to the crime with which the appellant was charged. We do not believe that the trial court abused its discretion in admitting the additional evidence after the state had rested its case.

As his fourth objection, appellant contends that the court erred in refusing to give his tendered instruction number 4, which instruction read as follows:

“INSTRUCTION NO. 4

1, The Court instructs you that the using of a deadly weapon does not necessarily imply malice.

While the law presumes a sober man to intend what he does, the law does not presume a killing with a premeditated design. This, like every .other element of murder in the first degree, is to be inferred by the jury from the facts proved beyond a reasonable doubt.

2. Malice may be proved by direct evidence such as prior threat, assaults, or seeking an opportunity to perpetrate the act. This is called ‘express malice.’

Malice may also be implied from the act of killing, if the killing is done purposely and without legal excuse or reasonable provocation, or if the act is perpetrated with a deadly weapon so used as likely to produce death; the purpose to kill may be inferred from the act of killing.

On the other hand, if death, though wilfully intended, appears to have been inflicted immediately after some great provocation given by the deceased, which provocation is deemed by the law adequate to excite sudden and angry passions, this fact rebuts the presumption of malice; but the killing is still unlawful, because a man is bound to curb his passions and the offense is manslaughter.”

The court, however, did give the jury the following instructions :

“INSTRUCTION NUMBER 31

A part of the Statute of the State of Indiana, which defines and states the essential elements of the crime of FIRST DEGREE MURDER, with the commission of which this defendant is charged, reads as follows:

‘Whoever purposely and with premeditated malice, kills any human being, is guilty of murder in the first degree, and on conviction shall suffer death or be imprisoned in the state prison during life.’ ”

“INSTRUCTION NUMBER 32

The Statute of the State of Indiana which defines and states the essential elements of the crime of SECOND DEGREE MURDER, which may be included under the

charge of FIRST DEGREE MURDER as shown in the indictment, reads as follows:

‘Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of Murder in the Second Degree, and on conviction shall be imprisoned in the State Prison during life.’ ”

“INSTRUCTION NUMBER 33

The Statute of the State of Indiana which defines and states the. essential elements of the crime of MANSLAUGHTER which may be included under the charge of FIRST DEGREE MURDER as shown in the indictment, reads as follows:

‘Whoever voluntarily kills any human being without malice, expressed or implied, in a sudden heat; or involuntarily, in the commission of some unlawful act, is guilty of Manslaughter and on conviction, shall be imprisoned not less than two (2) nor more than twenty-one (21) years.’ ”

“INSTRUCTION NUMBER 35

Malice may be proved by direct evidence such as prior threats, assaults or seeking an opportunity to perpetrate the act. This is called express malice. Malice may also be implied from the act of killing if the killing is done purposely and without legal excuse or sufficient provocation; and if the act is perpetrated with a deadly weapon so used as to likely produce death, the purpose to kill may be inferred from the act of killing.”

The appellant’s argument is based on the premise that the jury was not instructed that a sufficient provocation would negate any implication of malice and reduce the crime from murder to manslaughter. The only evidence pointed out by the appellant which he contends can serve as a basis for finding sufficient provocation to reduce the killing to manslaughter is found in his own testimony. On direct examination, he stated that during the argument with his wife, she attempted to push him down the basement stairs, that he had grabbed her to break his fall, and that as a result they both fell down the stairs. This is all the appellant could recall as regards how his wife became fatally injured. The appellant did not testify that this fall provoked him into stabbing his wife, but rather implied that the fall was what had caused her injuries.

■ “Q. What did you do then?

A. I reached and grabbed her, . . .

Q. And for what reason?

A. ... in the process — what purpose?

. Q. Yes.

A. To prevent me from falling down the stairs, to break my fall, to keep from em, uh, falling straight. This was a break, this was something that to prevent me from falling.

Q. Did you then fall on down the stairs?

A. Yes.

Q. Do you remember a tall cabinet that was located at the foot of the stairs?

A. There, yes, there was one there, yes.

Q. Do you recall if, in falling down the stairs, you struck that cabinet?

A. No.

Q. You did not, or you don’t remember?

A. I do not remember.

Q. After you got to the bottom of the stairs, what then happened?

A. This I don’t remember.

Q. What do you next remember?

A. I next remember I was back in the back of the room and seeing my wife laying there on the floor.

Q. Now, when you, you were in the back of the basement?

A. Yes.

Q. That would be on what, the east end?

A. Yes, I would, yes.

Q. East end of the basement?

A. Yes.

Q. Now, when you next.remembered seeing Mable, where was she lying?

A. The exact location I could, I really don’t know, but it was close around the steps.”

Inasmuch as the deputy coroner had previously testified that the victim had suffered twelve stab wounds from a sharp-pointed object, it was within the province of the jury to disbelieve that appellant’s version of the story. But, even accepting this testimony as true, there is still no evidence to indicate that a single stab to the appellant’s wife was provoked by the appellant’s fall. Rather, the first act the appellant can remember performing after the alleged fall was going back upstairs to call his mother, and, by this time, the fatal wounds had evidently already been sustained by the victim. We cannot find any evidence to sustain the appellant’s contention that the crime was mitigated to manslaughter because the actual attack was motivated by a sufficient provocation. All the other rules of law in the appellant’s tendered instruction number four were fully and adequately covered by the final instructions given by the trial court. Thus, we believe that the trial court properly refused to give tendered instruction numbered four (4).

The final objection made by appellant is that there is not sufficient evidence to sustain a finding of malice. Not only the number but the lethal character of the wounds articulates an attack of such intensity that the jury could reasonably infer that malice and purposefulness did exist at the time the wounds were inflicted on the victim.

The deputy coroner testified that there were twelve different wounds to the head and chest of the victim many of which would have to have been caused by a sharp-pointed object and at least some of which could not have occurred by self-infliction or by the victim’s having fallen on this object. Two of the lacerations to the head went to the bone, and one to the chest penetrated to a depth of six (6) inches. The appellant admitted that he killed his wife, and, from the nature of her death, it can be inferred that he did so by stabbing her with a bayonet. It is well-established in Indiana that the use of a deadly weapon against an unarmed person in a manner likely to produce death is sufficient evidence from which to conclude that malice existed. Sparks v. State (1964), 245 Ind. 245, 195 N. E. 2d 469, rehearing granted on other grounds, 245 Ind. 250, 196 N. E. 2d 748; Warren v. State (1963), 243 Ind. 508, 188 N. E. 2d 108; Miller v. State (1962), 242 Ind. 678, 181 N. E. 2d 633.

For all the foregoing reasons, the judgment of the trial court should be affirmed.

Judgment affirmed.

DeBruler, C. J., Arterburn and Givan, JJ., concur. Jackson, J., dissents with opinion.