263 Ind. 90 | Ind. | 1975
Willis Adkins was convicted of murder in the second degree in a trial by jury in the Grant Circuit Court, the Honorable A. Morris Hall, Judge, presiding. Adkins was convicted in the shooting death of his wife.
In Indiana, second degree murder is defined by statute as follows:
“Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree. . . .” Ind. Code § 35-1-54-1, being Burns § 10-3404.
Appellant’s allegation of error is that there was insufficient evidence to sustain the verdict of guilty of second degree murder. In reviewing this allegation we do not weigh the evidence, but only examine that evidence and reasonable inferences to be drawn from it which support the verdict. The conviction must be affirmed if upon such examination, there is evidence of probative value from which a reasonable trier of fact could infer that appellant was guilty beyond a reasonable doubt. Fair v. State, (1969)
Specifically, appellant contends that the evidence is insufficient to support the jury’s determination that in shooting his wife, he did so purposely and maliciously. He claims that the evidence would support only a voluntary killing in a sudden heat and requests this Court to order the judgment and sentence reduced to manslaughter. Appellant relies primarily upon the fact analysis in Dickens v. State, (1973) 260 Ind. 284, 295 N.E.2d 613, where upon a review of evidence this Court made such an order reducing the sentence. Voluntary manslaughter is defined by statute as follows:
“Whoever voluntarily kills any human being without malice, expressed or implied, in a sudden heat, is guilty of voluntary manslaughter. . . Ind. Code § 35-13-4-2, being Burns § 10-3405.
On the day of the shooting, appellant’s wife picked him up from work at 7:30 a.m. He had received his paycheck before quitting time, and together they proceeded to the Edgewood Tavern, arriving there about 8:00 a.m. While there they each drank about six beers and were in a friendly mood. She left the tavern and cashed the defendant’s check. When she returnd to the tavern, they purchased a case of beer and left. On the way home they purchased groceries and gasoline, arriving home at about 10 :00 a.m. At home they watched television in the kitchen and continued drinking beer.
Three of decedent’s daughters were in school at this time, leaving at home, the appellant, the decedent, their three small sons, and the decedent’s mentally retarded daughter, Jeannie Riddle. Jeannie was pregnant at the time, twenty-two years of age, unmarried, and a problem to the family. An argument erupted between Jeannie and the three small boys during which she called them “bastards.” Appellant “called her down,” and she went to her room and played her radio full blast. Appellant called her down again, but she con
While appellant was in the bedroom scolding his stepdaughter, the decedent got a .22 rifle from her bedroom, approached her daughter’s room, threatened to kill appellant, and fired two shots in the direction of appellant, one burying itself in the ceiling of the daughter’s bedroom and the other knicking appellant’s ear. Appellant struggled with decedent, took the gun from her and subsequently shot her through the head.
Appellant immediately sought to aid his wounded wife, ordering Jeannie to get the police and an ambulance. The wife died on the way to the hospital in an ambulance. Appellant was arrested and gave a full voluntary statement of these events to the police.
The evidence further shows that appellant and decedent were about the same height, however the decedent weighed approximately forty pounds more than appellant. She was a large boned woman, strong, could fight, and at the time of her death carried a blood alcohol of .123%. She was in her early forties; he in his early fifties.
Focusing upon the events which immediately preceded the fatal shooting, we see from the record that those events are described by the appellant on three separate occasions. Each of these three separate versions was presented to the jury. The first was given by appellant at his residence at the time of his arrest at noon. It was testified to by one of the investigating officers. The second is a written statement given at the jail six hours after his arrest. The third is the appellant’s testimony at the trial. Each of these versions is basically consistent. The decedent, at the time she was shot by appellant, was standing in the hallway of the house at
The judgment of the trial court is affirmed.
Givan, C.J., Arterburn, Hunter and Prentice, JJ., concur.
Note. — Reported at 324 N.E.2d 817.