*1 v. of Indiana. Anderson State 29, Rehearing 30,609. Filed June 1966. [No. September 1966.] denied Jr., appellant. Bowman, Indianapolis, for Forrest Dillon, Attorney General, Wedding, John David J. S. Deputy General, Attorney appellee. J. This was a criminal action commenced
Myers, charging appellant State of Indiana an indictment *2 the first-degree felony of murder. The cause was submitted to jury plea appellant’s guilty on of not in which resulted appellant manslaughter. Judgment guilty verdict that wаs thereon, appellant was rendered and was sentenced to the years Indiana for a term of not than State Prison less two twenty-one years. Appellant’s nor more than motion for appeal trial new was overruled the court and this followed. following:
Evidence to most favorable the State reveals the Dorothy July 2, 1962, One testified that on Andrews she apartment at was home alone in her located at 1116 North Capitol Indianapolis, a.m., Avenue in Indiana. 9:00 the About deceased, Mays, came in and Charles Willie sat down. She lying fully was on a couch not There clothed. knock recognized door, appellant. the and the voice of She she put skirt, appellant on a and then let in the room. blouse argument appellant An ensued between and the deceased. Appеllant pulled pistol pocket, out of over to walked began hitting kicking deceased, pistol the him with the him.
Appellant grabbed collar, then the deceased around the pulled pushed him chair out him toward hallway. appellant put Deceased half and told to turned gun appellant fatally down. At moment shot the de- just shooting, ceased. Andrews stated that before appellant you ‘T I stated: knew would have to kill sooner ¡ = or later.”
Following shooting, Dorothy ran across the Company street a Tire hid behind some tires because danger. in she was scared and felt her life then asked She they boys police. arrived, some to call the When she accom- panied shooting. them to the scene 1959, appellant home in came further testified that
She “girl Penitentiary They friend.” and she becаme his together Spring him. until the when she left lived there had been several altercations between time Since particular, In deceased. on one occasion and the May, 1962, appellant home in attacked the at her mother’s cutting knife, his face and arm. deceased with a him, come her to back but refused. wanted assignment overruling upon errors is based grounds appellant’s motion for trial. The new first two therein jury contrary are that the verdict law and together sustained evidence. sufficient These are treated Argument appellant’s Proposition I. section brief as Appellant admits: ample “There is circumstantial the record witnesses, cause, apparently this obtained from credible degree corpus
to establish the delicti of murder or first manslaughter. However,” says, he “aside from the testi- *3 mony witness, Dorothy Andrews, not Jane there is implicate defendant, a scintilla of evidence to Anderson.” Alonzo the Dorothy Andrews admitted on the that The record shows age, thirty years had of that she that she was witness stand twenty, that a prostitute she was narcotic a since she was been years age; eighteen of had or nineteen that she since addict leaving high school, emplоyed had that she since never been high legitimate livelihood since school source never had of contributing 1949; days been eonvicted of in that she had 1951; delinquency of a minor that had been con- the 1957; prostitution and obscene conduct 1956 or victed public intoxication in 1959 had been convicted that she grand larceny 1962; arrested for she had been 1959. that the claims that herein; to sustain a conviсtion that there is insufficient court, law, a matter of evidence before this as no substantial required support material facts essential to a convic- the disreputable credibility her becomes tion; that she was so that Sylvester The v. State court. case question of law for the authority as 628, 187 N. E. is cited 205 Ind. proposition. for the Sylvester, con- case, appellant, tried and that the
In taking. only by evidence connect- jury of victed vehicle came ing any the automobile Sylvester in manner with stolen single He admitted was an the mouth of a witness. from Navy. thief, the Each highway from robber and deserter concerning directly Sylvester con- material statements witnesses, oath, by by under disinterested tradicted himself by The wit- physical facts. by circumstantial evidence accomplice Sylvester the an arrestеd with as ness was hearing, crime, pleaded guilty At the and was sentenced. Judge pronouncing judgment, questioned him about before the surrounding alleged facts theft received answers person anything positively denying any to do other had signed taking in which he He an affidavit car. later taking Sylvester any part in the exonerated stealing changed Sylvester’s he the automobile. At taking. implicated his tune and him in the This court reversed grounds Sylvester partially the conviction of that such by carefully scrutinized, only this be as must jury, court, to determine but in order whether any there was sustain each substantial evidence to issuable law; legitimate in the fact as matter of Sylvester had case failed as a matter to establish that law larceny, any criminal and that the connection with the verdict brought collateral about “collateral matters.” These attempts matters concerned to insinuate the Prosecutor’s other than one was on trial offenses for which accused *4 asking argument rejected questions repeatedly or if commenting upon the answers would have been what allowed. pertinent Sylvester do is to
We not think the case Andrews, witness, Dorothy present Here, facts case. 556 regarding any
did contradict herself under oath concerning appellant’s material fact or statement con shooting. nection with the She was not contradicted by any under oath disinterested No circumstantial witnesses. story evidence contradicted her to so as render it unbelievable. physical There no were facts made her un which alleged plausible. proven accomplice. She was not or an be sрite reputation background, jury In of her could have imaginary, found her evidence was not but was sub stantial. took the witness stand his own behalf and Dorothy apartment.
denied that he had ever been in
Andrews’
up
weigh
conflicting
jury
It
evidence
credibility of
and determine the
the witnesses. Swift
(1961),
87, 90,
v. State
242 Ind.
Under claims that proof, there a failure of or a variance evidence, in the charged indictment killing with bullets, deceased lead with and the evidence showed he copper-coated killed lead bullets. showing no There is here prejudicial that these claims were rights appellant upon to the substantial the merits. Our provides judgment Criminal that no Code or proceeding other stayed, or any shall be arrested imperfec- affected defect or tion does not prejudice which tend to the of the substantial rights upon оf the defendant the merits. Stat., Burns’ Ind. (Tenth), Replacement; Lucas v. State §9-1127 709, 187 Ind. E. N. 274. As it variance was im-
557 155, 203 E. 2d (1965), Ind. N. Denton v. State 246 material. object to Furthermore, to it failure it waived 539. Ind. 197 during 245 v. State trial. Roberts 2d 304. N. E. in committed contends that error was permit Dorothy to state whether refusal to
court’s violating Municipal Or she had been convicted commonly City Indianapolis known of the dinance being street,” 10-908 sections “lewd woman as Muniсipal It admitted that is and 10-924 Ordinances. in In impression question first exact is one of involved that convictions diana. authorities are cited which state No subject-matter proper for Municipal under Ordinances are Municipal impeachment. Appellant that admits violations says technically crimes, but that “this not Ordinances are necessarily inadmissible.” does the evidence not render * “* * Appеllee says in settled its brief it well hence municipal crimes and not violation ordinances are subject au- proper impeachment.” No are not matter for are for thorities cited this statement. she
We whether do believe it much difference makes already question admitted she answered the or not. had She per- prostitute years. was a The ordinances involved ten purpose оf prostitutes tained to solicitation as such. credibility question and show cross-examination to her brought direct depravity. already out on her This had been examination and In the latter she admitted cross-examination. Cleveland, Ohio, having in prostitution been convicted of 1953. There no witness with viola- need to belabor the violating Municipal tions of admitted to Ordinances when she pertaining laws which arе misdemeanors on the books statute subject-matter. same Appellant charges making erred the trial court during capricious, unnecessary unreasonable and remarks Specification trial. 5 of motion for trial states: No. new Judge capriciously, “Error of law in that the Trial un- reasonably unnecessarily counsel admonished defense presence Jury on several occasions in the оf the which were defendant, prejudicial one of which is set occasions Specification 4.”
forth in questions Specification pertaining forth sets answers city ordi- to the admission “lewd woman” Appellant’s attorney had asked An- nance. twice being whether had been arrested and convicted of drews *6 question pertained lewd woman the street. The first to 19, 1956, objection to an the date of November which was question pertained The sustained. second to the date of Jan- uary 18,1958, objection court, to which an was sustained. The upon request Prosecutor, appellant’s admonished attorney questions attorney not to raise such thereafter. The said: admonished, “I I am and wish to make one statement. City have a written decision that Ordinances are now We
appealed Court, City to thе Criminal and not to the Court.” The Court: correct,
“That is and the admonishment stands.” see, pointed out, cannot appellant We nor has it been how substantially by was harmed the court’s remarks. The at torney object admitted he was admonished and did not Therefore, give to the admonishment. no we considera tion to this contention.
Finally, it is claimed that the trial court erred in not granting appellant’s change motion for from the venue county. 19, Appellant This was filed November 1963. arraigned 8, change October 1962. It is claimed that effect, being venue Stat., statute then in Burns’ Ind. 9-§ 1305, Replacement, governed this matter rather than Supreme 1-12C, requires Court Rule which a defendant to change file a county motion for of venue from the within days arraignment. ten adopted January after The rule was 29, 1963, and became effectivе June 1963.
It to be noted that the motion to sworn requires Notary an The statute Public. before a application. requires We a verified The rule affidavit. the statute rule or to decide whether not need do applies unverified, and motion was this case. properly it. overruled the court designated pro se this court what is filed has “Appellant’s ais Petition to Inform the Court.” This
as lengthy attorneys repre- of his on the failure
dissertation appeal properly on the in the trial court and him both sent charge negligence incompetency; resulting level, in a trial; a fair not have that he did suffering insanity perjury guilty caused bail; trial narcotics; refused that the that he was
use of hearing grant habeas him a on writ of refused court judge appoint corpus; court refused other that the Attorney appellant, attorneys refused General appellee’s appellant. copy brief to to submit reviewing carefully in matters these We have scrutinized grounds find no for this “Petition.” case and the trial Appellant this attorneys presented trial, fair his have received a day they him, and he has had could for case best court.
Judgment affirmed. opinion. J., J., Jackson, dissents Arterburn, concurs. with participating. J., Achor, J., Rakestraw, and C.
Dissent agree the conclusions Jackson, am unable with J. I opinion majority in and arrived at the and determination thereto. dissent only State, the and most favorable
The evidence connecting appellant directly murder, comes Dorothy Andrews, witness, of the State’s from the Mays, apartment decedent, met Charles Willie in whose his death. following pertinent opinion majority facts: recites the
The 560 Dorothy on admitted that record “The shows age, years she thirty that that she was the witness stand a twenty, that she was prostitute since she was a had been age; years that eighteen or nineteen addict since narcotic school, leaving high employed that since never been she had legitimate since of livelihood a source never had had she 1949; convicted days had been high contributing in that she school 1951; delinquency in that she of minor tо the a prostitution conduct obscene convicted had been 1957; public intoxi- that had been convicted she 1956 or 1962; arrested that had been she
cation larceny in grand 1959.” policeman, Jeter, Indianapolis testimony of David an The July 2, 1962, company officers he in with other that on apartment Dorothy Andrews to investi- to the called were they Mays. gate of Charles The officer testified death Willie happened and questioned Andrews about what had Miss thoroughly. cross-examination, apartment On checked hypodermic needle, spoon, testified that a Jeter Lieutenant use, syringe dope type that addicts and a utensil a cooker apartment custody. He and taken into in the found were bedding. the articles in the couch and that he saw stated on the needle. fresh blood There tеstimony of Lieutenant corroborated Jeter was The Sergeant Leroy who testi- of Detective Callahan apartment bloody hypo- at the time a that he fied syringe needle, found. a cooker and were dermic Dorothy witness, Andrews, that also testified she was The bloody police apartment officer needle. in the when found a the needle was hers that she owned stated She fixing narcotics. cooker used for that she had not discussed Andrews also testified morning morning, anyone i.e., the she the case with However, testimony of did read her October testified. questions and answers of October admitted that 24th. She prosecutor. supplied her 24th had been Sylvester relies the case v. State 669, authority support Ind. 187 N. E. as *8 trial. motion for new
561 connecting any manner only “The evidence single aof the mouth came from automobile with the stolen high thief, witness, admitted the admitted That witness. navy, was, as the deserter from way to each and admitted robber concerning appellant’s statements of his material by directly contradicted car, the stolen connection with himself under by circum witnesses, by oath disinterested un are not evidence, by physical facts. We stantial for the fact are that errors of mindful of the rule having aрpellate court of are for the court and errors law a convic jurisdiction, of the rule nor are we oblivious of an may supported only the evidence tion be sustained another, equally along is accomplice, as these rules but with support requiring evidence important, substantial finding guilty. This a of each fact essential authorize appeal, places court the evidenсe before the rule last not purpose of weighing it, purpose or for the for the conflict, for determining but when there is actual the facts law, or deciding, question purpose whether as required support of the is substantive evidence not there enough It not to a conviction. is facts essential material evidence, given full when a conviction that to sustain faith and suspicion may to a credit, or amount warrant 43, 47, N. E. 200 Ind. Sullivan State scintilla. v. Ind. Cleveland, etc., Ry. Wynant (1893), 134 265; Co. v. 681, 686, 34 E. 569. N. confronted, court, years, past has been “This for the few resting entirely upon before, convictions as never very type, and in testimony of criminals of the worst cases, disposition them on majority of these before final petition appeal, to a our attention has been drawn person upon affidavits writ coram nobis based to the persons on the conviction rested or whose given wholly evidence at the trial was effect that their alleged facts supplemented by a statement false and completely criminality. exonerating the defendant foregoing procedure reverse of the In the instant case the respect below, effect place for the trust but took of an oath on the consсience of such a witness resting Experience that convictions admonishes us same. character the alone of witnesses upon the carefully have, scruti- should be one in case is shown this case, nized, jury only so instructed this but determining there by was the view of whether court with jury any before the to sustain substantial as mean- use the word ‘substantial’ issuable fact. We each ‘seeming imaginary.’ legally Whether ing or morе than *9 may admitted guilt tend to establish facts from which evidence question may reasonably is for be inferred a law presented by peremptory a a the trial court when motion for instruction in favor of the defendant at the close of the state’s evidence, evidence, or at the close of the entire or by motion for a trial for The new insufficient evidence. any on may action of the сourt one of these motions be presented appeal.” for saved review witness, in this case discloses that the The record addict, having Andrews, an admitted narcotic such addiction is eighteen years age or commenced when she was nineteen continuing October, 1968, at least until the 24th of when Corpus proceeding testified in a Habeas she in connection with being jail this case. At that time shе was held for violation subpoena. admitted She that she was under the influence jail. of narcotics she went to At when the time she testified Corpus hearing experiencing at the Habeas she was with- symptoms. County drawal was later She sent to the Marion Hospital General for treatment. This was the witness in apartment Mays whose came Charles Willie to his death gunshot would. The of this witness is contradic- tory and inconsistent time to time and at variance with gave hearing*. Corpus at the Habeas principle Sylvester established in case, supra, is disreputable credibility that a witness can be so be- question comes of law the court.
In the case at bar the uncontradicted facts are: Mays A. apartment Charles was shot in Willie of Miss Andrews;
B. questionable Miss say Andrews’ character is least;
C. Miss years Andrews is an admitted narcotic addict of standing;
D. testimony implicating Miss aрpellant Andrews’ in the death Mays completely uncorroborated; Charles Willie is
E. That Miss only persons Andrews and were the present apartment in her when decedent was shot. and circumstances here existent In facts view clearly insufficient to sustain the conviction. The reversed, judgment be the cause remanded to the herein should grant appellant’s motion for trial court with instructions trial. a new Rеported in 217 2d 840. N. E.
Note. — Superior ex rel. et al. v. Welsh Court State *10 County Judge. Symmes, 4, Room Marion No. 30,658. September Filed
[No. 1966.] Dillon, General, Attorney J. William D. Ruckels- John Attorney General, haus, Deputy for relator. Fasig, appellee. Indianapolis,
Donald L. Jackson, herein are J. The and matters involved issues moot now and this cause is now dismissed.
Rakestraw, J., JJ., Achor, Myers, C. concur. Arterburn J., participating. Reported in 219 N. E. 2d 812.
Note. — City et et al. Miller Evansville v. al. 30,501. September 27, Filed
[No. 1966.]