*1 garding delinquent light owed him. In the taxes us, the evidence before inclined to concur in we are this contention. finding appearing it the court’s not, particulars, sup
fact and conclusions are in several ported by contrary the evidence and are case, necessary law of the it would be judgment aside, op so entered be an set with portunity hearing afforded for the of additional evi findings and for dence the court to restate his of fact Superior Mfg. Corp. and conclusions of law. Trailer Scatterday, Inc. J. W. 185 N. E. 417; Miller, Ortman, 2d etc. v. etc. et al. N. E. 2d 17.
Judgment reversed, with ap- instructions to sustain pellants’ plea in abatement.
Landis,
J.,
Myers,
C.
Arterburn
JJ., concur.
Jackson, J.,
concurs
the result.
Reported in
Note. —
Baker v. State. 30,345. January Rehearing Filed [No. denied March 1964.] *2 Aurora, appellant. Denmure, for F. Hartell General, Frederick Attorney Steers, K. Edwin General, appellee. Attorney Graf, Deputy J. charged tried before Appellant was
Achor, J. — degree murder. and convicted of second *3 in his for and Appellant, new trial in motion said However, for a new trial. brief, 21 causes sets forth 1, 5, 6 and 21 are only numbered because Causes argument, supported by other as substantial considered trial are for new serted causes (f). (e) Rule 2-17 and waived. grounds aрpellant’s for consider
We will therefore presented: in order above the new trial in overrul- reversible error 1. the court commit Did change ing appellant’s for of venue from the motion although the county? appellant’s contention It merely grants Repl.] [§9-1305, 1956 Burns’ statute1 upon change of venue are founded affidavits for 1. “When county against defendant, prejudice in the excitement court, discretion, by death, may, punishable in its all not in cases change by grant punishable death, shall and in all cases 1.69, county. 1905, Acts ch. . . .” most convenient venue Repl. 584, p. §9-1305, Burns’ 1956 §207, found in right change venue, subject to a to the discretion court, of the change the denial of such of venue under the circumstances constituted an abuse dis- part cretion court, of the trial and was in vio- lation of Art. Constitution,2 §13 Indiana Amend, the 6th Constitution the United States.3 support
In contention, appellant cites re Irvin v. Dowd lies case 366 U. S. (2d) Sup. L. Ed. Appellant 1639. Ct. cites, also approval, language with contained in the dis senting opinion of State ex rel. Fox LaPorte C. C. N. E. 2d 875.
We observation, regarding have this case supra. Irvin Dowd, In that case this court affirmed the decision of the change which court had denied a beyond аdjoining venue county. an Supreme Court, U. S. effect, decisions, reversed both and ordered a new trial. In that case the defendant had confessed to the cold-blooded murder of six women Indiana, Kentucky and Illinois tri-state area. naturally These events received impas- extensive and publicity. Eight jurors sioned of the twelve selected to try accused, opinion stated that in their he was 2. prosecutions, “In all criminal to a the accused shall have the right public by trial, impartial jury, county an committed; offense shall have been to be heard him- counsel; self and to demand the nature and cause of the accusa- against him, copy tion face thereof; and to have a to meet the witnesses face, compulsory process and to have obtaining to_ wit- nessеs in his favor.” Art. §13 Constitution. “In all prosecutions, enjoy criminal the accused shall right state and speedy public trial, impartial to a an *4 committed, district wherein the crime shall have been previously by district shall have law, been ascertained to be informed of the accusation; nature and cause of the to be against him; confronted process compulsory with the witnesses to have оbtaining favor, witnesses in his and to have the assistance of counsel for his defense.” Amend. Constitution. guilty that, particular charged, of the murder in but deciding guided by case, they would their not be present opinion guilt, but would as the defendant’s guided solely by presented be at the facts by by case the law as stated the court. Until the Dowd, supra, Irvin always been the this has by qualification juror.4 test which to determine the of а court, saw, heard, The trial who and believed the prospective jurors, accepted statements these them qualified jurors. as Supreme States, reaching Court of the United in obviously decision,
its assumed role of a trial court credibility pros- and determined for itself the of the pective jurors, witnesses, weight given to be testimony. to their We have not conceived this to be proper court, function of as a court review. any event, Irvin case,
In the facts as indicated Supreme altogether U. opinion, S. were existing different In those in the case at bar. that case the U. S. Court described the facts as follows: “ . . . stake, With requiring his life at it is not petitioner
too much that be atmosphere tried in an by huge undisturbed and public so passion wave other than one in which two-thirds admit, hearing any thе members before testi- mony, possessing guilt....” a belief in his present case, In the there no evidence of an “atmosphere huge public undisturbed so a wave of passion,” evidence, hearing nor did the taken at the Amend, 4 The 6th to the United States Constitution does not . jurors require accused. opinion, guilt be free as to the fact, Jefferson, speaking subject In Thomas inaugural address, his first principles selected.” stated that as one of “the essential government,” by juries impartially there he “trial [Emphasis added.] *5 change venue, that there the indicate was regard prejudice odium, appellant or the or with unprejudiced jury offense, not be se- an could county. in lected quoted by quarrel no with the statement
We have
J.,
in State La
dissenting opinion
Emmert,
in the
90-91):
supra (236
pp.
C.,
Port
at
e ex rеl. C.
“
justice
by jurors
in a trial
can be no
‘There
by
warped
prejudice,
by passion,
awed
inflamed
public
by
by
violence,
the virulence
menaced
manifestly
by any
opinion
operating
influences
or
biased
insiduously
openly
an
to such
either
prevent
poison
judgment and
extent as
’ ”
Justices
.
freedom of fair
.
[Crocker
action.
162, 179,
Superior
(1911), 208 Mass.
We conclude that the trial did not abuse his court change denying of venue discretion the motion . county appellant’s frоm the and that constitu rights
tional were not violated such action the court. appellant’s contention, consider second
We next jury’s evi- not verdict was sustained sufficient dence. charged, appellant which statute under
convicted, sentenced, §350, p. is ch. Acts Repl., §10-3404, found in Burns’ 1956 reads as follows: “Whoever, purposely maliciously, but with- guilty being, any out of premeditation, kills human *6 degree, and, murder second on convic-
tion,
prison
imprisonеd in
dur-
shall
state
be
ing life.”
prove
Thus,
for
it was incumbent
the state
here
purposeful
appellant
hilling by
malicious
charged
Horton,
paramour,
Culla
(1963),
indictment. Warren v. State
243 Ind.
508,
This court has held that the malice intent and neces sary charge to sustain a of murder in the second de
gree may be inferred from the circumstances surrounding the transaction. DeBoor v. State (1962), 243 Ind. N. E. 2d 250.
This court has held also that:
“Concerning the absence оf evidence of motive in case, this Court has stated the rule as follows: “ ‘ motives, any speculative psycho- “With logical sense, law, neither nor the tribunal law, any proper which administers the has concern. they acts men profess, The outward are all that regulate called punish. are or to . .. may And that motives be conduct, inferred from motives, prin- as well as ciple conduct ais fаmiliar ’ presumptive law of evidence.” [Hin- (1877), 334, shaw v. 364, State 147 Ind. 47 N. E. 157.] “Also, may it has held been that motive be in
ferred from the commission the criminal act. 55, 64, (1927), 199 Ind. Evans v. State (1921), 206; Morgan 203, N. v. State E. Byrd 411, 417, 530.” 130 N. E. 190 Ind. (1962), 452, 185 N. E. 2d State 243 Ind.
Furthermore, under like cir held this court has purpose malice have cumstances, whether or not jury. proven, questions been of fact are E. 521, 98 N. Wahl v. State 2d 671. appeal, only
On favorable the evidence most considered, all reasonable state will be as well as logical may therefrom. be drawn inferences that E. 35, 188 N. Tait 2d 537. ap- against the state evidence most favorable to necessity
pellant including deter- LeRoy Baker, or in- appellant mine whether had a diseased or not killed, is as sane mind at the time the deceased follows:
Appellant involved in ex- and the deceased had beеn night tramarital romance for months. On several o’clock, of November both the at about 11:00 *7 appellant in and Pub Tavern decedent were Later, They they left. Aurora. were both sober when night, witness, on billfold a who had lost his same parked vicinity, appellant’s car, passed was lane,” place on in wide off the road on “lover’s oc- or second three different occasions. On the first legs casion, on a woman’s over the seat he saw wearing black slacks the car. She was driver’s side pedal pushers, On and had on white sox. shoes seeing occasion, the third his billfold at about same casually spoke location, stopped pick up it and he Baker, appear drunk.” appellant “didn’t to be who day This was about 12:30 The the vic- a.m. next body, attired, tim’s so found at the was bottom the appellant’s embankment road car had where parked night following day ap- been before. pellant County and to Dearborn was arrested taken Jail, where, interrogation, on had he admitted he body killed the decedent and left her where her had According coroner, been had found. she suf- by strangulation. fered death evidence, appellant’s
At the conclusiоn evidence presented plea guilty by appellant’s rea was not temporary insanity plea guilty and of not
son testimony reason of mental disease. This was appellant sane, to the effect both at criminal the time of the act and at the time trial. Thus, state, contrary appellant’s contention, did upon ap probative submit substantial evidence value pellant’s spеcial plea insanity temporary and dis proof upon eased mind thus sustained its burden of Flowers v. State (1947), issue. this See: 236 Ind. 185; Warren v. State (1963), N. E. 2d 243 Ind. supra. E.N. 2d major appellant contention,
aAs
third
asserts that
contrary
the verdict
to law because of deficiencies
Only
evidence.
when the evidence is with-
out conflict
leads to but one reasonable con
clusion,
the verdict
reaches
contrary conclusion, will the verdict be disturbed as
being contrary
to law. White State
244 Ind.
supra;
486;
State,
Warren v.
E. 2d
Bowens
N.
As No. 21 trial, cause of his appel- motion new judge lant contends that sustaining erred in *8 138 following question objection asked to the
the state’s recognized Fong, expert: medical Dr. “Q. knowledge, you your if Do and know of own
you please say, in the free that don’t feel to know person eyes possible to law for a it is point unable rеach a he intoxication where is right impulses to control and determine wrong point considered and that at emphasis.] a mental disease?” [Óur involving proposition question The above is one evidentiary to facts tend law. It does not establish prove The ultimate an fact issue. ultimate LeRoy labor Baker was fact of whether or not ing legal disability con as would under such charged was complete stitute a crime defense jury, pursuant to instructions one to be decided subject expert. court, medical not this subject-matter, im question was, an terms Fong any event, (1) proper Dr. is not one In ask. law; recognized (2) appel expert on the as an prove to the excluded lant made no offer to evidence,5 (3) by No. its Instruction substantially law correct stated the the trial court matter. Judgment affirmed. Arterburn, Myers, J., J.,
Landis, J., and concur. C. Jackson, J., concurs, opinion. with concurs in result. Opinion Concurring majority opinion, J. —I concur Arterburn, Su particularly is said about the what any regarding present question exclusion of In order question, evidence, trial must set the motion new forth ruling. prove, Co. Kokomo Water Works Van Sickle offer 612, 617, Foust v. E. 2d 460. 158 N. 76, 84, 161 E. 371. N. 200
139 (1961), v. Dowd preme opinion in Irvin point out 1639. I S. Ct. Ed. 2d *9 L. U. S. same casе prior 5-4 decision a first that 900, S. Ct. Ed. 79 359 L. 2d [(1959) U. S. proce purely a barged over into state court that 825] nullify decision could matter. held that it dural It affirming Supreme the con Court of the 384, (Irvin 236 v. State Irvin viction of 898). opinion in that case was based E. 139 N. 2d Our procedural prin upon purely upon state and turned escape pending of Irvin ciple reason of the that it for a new motion court had before time right therеby to have the court trial, forfeited his he error, any a as a motion claim rule on such any appeal he had no basis held result we Supreme Court. dissenting assuming Frankfurter, to
Justice Court, Supreme jurisdiction by United States stated: juris “In view of vital a so limitation on our has, diction, relatively recently, Court until very insisting on been strict on an affirmative showing record, sought, when review is here clearly appeаr judgment that it com plained of on rested the construction of federal supportable and was not law on a rule local power question.” beyond (Our italics) our law 394, 409, Irvin Dowd 359 U. S. at 3 909, L. Ed. 2d at 79 S. Ct. at 833. dissenting opinions pointed in that case further Supreme any if out that the United States Court had Supreme opinion our as to whether state Court doubt upon question purely a a federal was based state proper thing procedural question, to do would be question certify to our case and court for clari- majority point. a fication unduly Supreme seemed to be case, anxious to take over the and we thus find that ignored that court the basic rule that it must be clear that the case in purely the state court turned and sole- ly question system on federal before the federal will jurisdiction intеrfere in the state’s of a criminal case. finally When the case was taken over the United States Court and reviewed the merits ((1961), U. S. L. Ed. 2d 81 S. Ct. 1639), for a second time that court violated well- principle appellate Judge established review. As majority opinion, Achor states in the it assumed the proceeded weigh role of a trial court and the evi credibility prospective dence and dеtermine jurors against witnesses, determina *10 Judge finding by Eby, judge tion and of fact the trial persons. who heard and saw such When the habeas corpus appealed case to the was Seventh Circuit Court Appeals ground receiving of that Irvin was not process (as alleged) jury due of law because he the prejudiced, Judge Schnackenberg, opinion was in the (Irvin (7 1959), that court Dowd F. Cir. 555), 2d at stated:
“The judge record reveals that the trial applied this act in painstaking this ease. With care, the court, asking questions jurors expressing an opinion guilt as to the or of defendant, innocence upon reading newspaper founded munications, statements, com- reports, upon comments or or rumors hearsay, required or juror each such to state on able, whether notwithstanding he felt oath_ opinion, impartial to render an verdict the law and evidence. Several of those who answered in the accepted upon affirmative were the trial jury. Defendant now determine, seeks to have us as matter of federal law, constitutional by action deprived the trial court defendant of a fair trial. intelligence, right question the “We have no jurors, sincerity of these the truthfulness the upon the impartiality render verdict whose examination, de- was, after evidence law and the satisfaction, judge’s the trial termined to provided act. manner the reading convinces the entire record “A careful prop- jury which tried defendant a the us that fact-finding erly qualified body.” impartial fair as however, Supreme Court, overruled The United States got Appeals down Court of the Sevеnth Circuit finding credi- the substituted its trial bench and Judge bility jurors and the witnesses the Eby violation a second of the trial court. This was principles appellate review. ignoring principles two Aside those ques- practical appellate more practice, we have a far presented tion pre- jury. appear under of a It selection would horrible, re-
vailing opinion the more of thаt court that likely shocking crime, would volting, less try defendant. be able to secure notoriety encourages violence policy Such a radio, publicity over tele- crime and its connected with making securing media, thus vision and other news Supreme Court jury impossible. The United States of a pro- sight duty owes to the State of the has lost against good criminal at- citizens tect the lives duty protect *11 to duty tack. That is as sacred as against conviction. the innocent tragedy of the assassination national recent
With the killing assassin, of and of our President then brought killers can a that such realization we are any fifty under the de our states of not be tried long Supreme The Court. United States cisions radio, period publicity television and in the over country. everyone newspapers carried to in this analysis, problem is, on last whether the shock ing following may people events, resentment of the such prevent relied the State be the defendants impossible persons. prosecuting from It be such would jury intelligent a find men who have not some knowledge expressed opinion and some about Judge Schnackenberg opinion events. stated (Irvin supra) Dowd, : v. trying prevented “If such the Statе is so from person, a it a means that commission within acts, multiplicity state followed criminal actually publicity, of- immunizes the usual reject prosecution. fender clusion as a con- We law this circuit.” Supreme rejected decision that case. We ask: Will writs of habeas
corpus in federal courts now freeing be the means of people charged crimes, though with notorious even judgе trial conscientiously has impartially selected conformity men in with the law the state? Will the United States get Court continue to down on the bench of the trial court and substitute personal judgment its credibility as to the of witnesses weight toas of the evidence over that of the judge heard, saw, who testify- knew those ing? I am afraid this be must answered in the affirma- tive. In a (Fahy recent case Connecticut, December, 1963, 229) U. S. 84 S. Ct. the United Supreme Court, States again decision, in a 5-4 usurped weighed trial court bench and the evidence. A dis- senting opinion by points Justice Harlan this out when he stated: *12 a are not “Evidentiary questions this sort particularly in business, proper part of Court’s over which coming courts from state here cases power. is supervisory This possesses no
this Court a conviction state rare instance not rests any evidence devoid record that defendant, charge against support cited)....” (Cases upon the limitation There be reasonable must some Supreme when Court States abstractions of the United everyday life. applied practicalities of United history Irvin reveals the case of a performing function States appeals. Because than a court court rather review, appellate principles of its violation weight precedent. no can have decision Reported 195 N. E. 2d Note. — Geiger Inc., Peters, et al. & 30,302. 1964.] Filed March [No.