*1 car, according testimony, and her father her she appellant’s She testified had sexual intercourse. during penis inside her that time. episodes intercourse with testified that such sexual
Sandra May 1, prior to 1965. occurred several times her father had Kay sister, Mary occasion, had been in the such her On one testimony. Sev- Mary Kay corroborated car at the time. they also step-sisters testified eral Sandra’s sisters living in his house. had intercourse with sexual record, detail, delving hold that the we into further Without above, favorably State, as outlined when viewed most probative value evidence of discloses sufficient substantial justify the drawn therefrom inferences to be reasonable v. State judgment Reno finding court. trial 334, 228 E. 2d 14. N. gave tending testimony though Even several witnesses defense, of no aid appellant’s factor is alibi establish circumstances, since appellant in this Court under the given testimony weight credibility and to be Reno v. province of the facts. of the trier within the supra. State, foregoing reasons, prejudicial has error no
For all of the of the trial presented appellant and the been is, therefore, court affirmed.
Judgment affirmed. Mote, Lewis, concur. J., Arterburn, JJ. Jackson C. Reported 479. in 235 N. E. 2d Note. — of Indiana.
Corbin Rehearing 30,850. February denied Filed [No. 4, 1968.] April *2 Cone, Greenfield, appellant. C. Thomas Deiter, General, Dillon, Attorney Charles John J. J. Deputy Attorney appellee. General, for appellant of Indiana J. The State indicted
Arterburn, degree, after found for murder in the first trial the guilty degree, court him of murder the second judgment accordingly. entered assignment trial filed in the of errors the primarily
court, upon appeal based, concerned is chiefly of the sufficiency consists with the of the evidence. This degree argument of malice. Second is no evidence as follows: murder is defined the statute pre maliciously, “Whoever, purposely without but *3 guilty any being, is of mur meditation, kills human 169, degree, 1905, ch. der in the second . . .” Acts 350, p. 584, being Anno. 10-3404 Burns’ Ind. Stat. § § Repl.]. [1956 appellant evidence in this case shows that the inflicted injuries daughter evening wounds on his on the October 24, brought 1964, which about her death. She died on October year. age 27th of that The child was months at the time of her death. showed
The evidence that embalmer testified he made the appellant an run ambulance to the residence of the and his night family 27th; ap- the October the child was parently appellant dead time. asked at the The coroner injuries how the child received the bruises and which were apparent, very he a his answer was that terrible Kirby hospital temper. at the he found Dr. also testified that baby dead; appeared that the child to be two three was years old; body. all over its that it had numerous bruises He baby’s appellant also, he death. when informed the happened, responded: him asked how it and the “Oh, I temper.” Costin, physician special- have terrible Dr. izing pathology, performed also testified. He stated he had child; autopsy hemorrhages an on the that there internal were throughout body and bruises and over almost the entire surface; body days that the bruises varied from one to three age; the death was caused a blunt blow to the force; abdomen that would to be of have considerable injuries time, period caused the over a rather death suddenly; than that there was evidence of blows and abrasions right forearm, leg hemorrhages scalp; on the left in the hemorrhages right kidney. and that Other were injuries child, at the time the were shows father, crying apparently inflicted irritated him, slapped Following this, and that first it and it. he bruised further blows were administered.
Any one with reasonable would know that one magnitude blows of of these numerous blows fatally injured child,
could have apparently magni was sick at the Where time. such blows of such any jury right repeated, tude are would have con perpetrator legal clude that intended to kill. Malice as perpetration inference be deducted from a cruel act, presumes and the law an individual intends the conse quences of his acts. 915,
In Stice v. 89 N. E. 2d evidence showed that used his fists to inflict defendant age weighing female, pounds,
blows on a result that she died from the numerous blows received. This court held that the blows from fists of a defenseless, mature man inflicted more one or less con *4 stituted evidence of malice and also intent to kill. In the us, disparity strength appellant before case the the year greater, in this case and the two old child is still and by one would know such that the blows as inflicted in this case infant would result in its
151 may particularly kill in view of be inferred death. Intent strength age size, of defendant and the relative powerful defendant who continued of a victim. acts ground help lying on the who was smaller beat a victim kill decedent. State intent to showed the defendant’s less v. 33, 2d also: L 142 N. 244. See (App.) Ohio Abs E. Powell 75 234; (Texas Crim.), Common 364 2d State S. W. Sadler v. 511, 76 A. Pennsylvania Pa. Buzard wealth of v. 394, A.L.R. 2d 2d action for assault intent to murder with malice
In an
beating
arising
by
of a
months old child
a
of
three
out
finding
father,
supported
jury’s
defendant
Hignett
intent to
acted with malice and
kill.
the defendant
(Texas Crim.),
State
The defendant prior a few months he had been convicted evidence that beating excessively this child and another child. same is no evidence' In to his contention that there answer go prove prior malice, acts assault such these prior unanimously have Courts held mental condition. may beating upon an or assault individual threats and acts of determining only malice, by jury not but a be considered premeditation. also 530, 521, 98 N.
In Wahl v. E. 2d question Court stated malice question jury, premeditation fact for the right to consider all circumstances “regardless of whether the circumstances occurred be homicide. from Malice be inferred fore or after against another. . . cruel act one . deliberate or us, testimony was direct the case now before In deceased, prior prior assault Louise threat and circumstantial, evidence, both direct There was Woodford. purpose premeditated inferences from reasonable jury.” could be drawn malice
The permitting court did not prior err in evidence of as- upon appellant, saults this child particularly as recent here under the that evidence. argued It is further that since the State introduced the statements and my conversations of the that “I lost precludes
temper”, etc., it an inference intent to kill negates thereby. the State’s contention In other argument words, the is made that because some of the evidence, along with other introduced the State defendant, is favorable to thereby that the State is bound jury right disregard and the has no such evidence and weigh it with other evidence. We never have heard of such principle law, authority nor is support cited to it. principle, invoked, deny Such a if jury’s would constitu right weigh tional the evidence and select such itas desired to believe. We do not believe the State nor a defendant can so handicap jury in its consideration of the evidence. We point may out also many State or a defendant in cases have to use witness and introduce certain evidence necessary making case, in may out its and there also come into the case opposing other evidence favorable side. This introducing party does not mean such evidence is thereby right bound to the exclusion of the consider all the evidence. may
Finally, say, we dowe not believe the law is such ought the defendant to be able to hide behind the con my temper” dealing tention “I lost blows the size character this case a defenseless infant escape jury. experience verdict Common knowledge jurors tell them may that a lose temper jury thought and intend to kill. happened ordinary this case from the abundant evidence. The diction ary “temper” ill-will, definition of spite, covers hatred, mean temper”. ness “a A temper choleric terrible or an un reasoning temper of an individual include malice premeditation, supra. even State, as stated in Wahl v. affirmed. trial court is Hunter, concur. Lewis, J. and J. C. Jackson, concurs. opinion, in which J.
Mote, J. dissents Dissenting Opinion Mote, majority opinion respectfully J. I dissent from the require only my duty strict herein because I feel it to be *6 proof having mentally by capable intent. of intent of one degree by
Appellant was indicted murder in the first for Jury County guilty” pleaded Hancock Grand and "not County Henry the The indictment. cause was venued the Court, Appellant, Circuit it was tried on motion of where by jury guilty of murder in returned a verdict of degree. the A filed and second Motion New Trial was over- for judgment ruled, after which on the verdict and was entered indictment, imprisonment imposed. sentence life The omitting parts, the formal read as follows: Indiana, “The Grand impaneled, Jurors for said State of charged and sworn in inquire the Hancock Court to Circuit body county within and Hancock, upon of said oath, charge present county their and that Norman Lee Corbin and Rose Corbin at said day October, on the 24th A.D. did unlawfully, feloniously, then and there pur-
posely Anita premeditated and with kill malice and murder one Corbin, being by human then and unlawfully, there feloniously, purposely ing premeditated and with malice, beat- striking and the said Anita Corbin with their hands and thereby inflicting a upon mortal wound in and body Corbin, the said Anita of which mortal wound the said Anita then languished, Corbin and there and from which mortal day wound on the October, year 27th in aforesaid, Corbin, county said Anita in aforesaid, then and there thereby and died. And so the aforesaid, upon Grand Jurors aforesaid, say charge their oaths do and the said Nor- Corbin, man Lee Corbin and Rose in the manner and form by aforesaid, and the means unlawfully, feloniously, pur- posely premeditated and with malice did kill and murder the Corbin, being said Anita of then contrary and there to the form provided, the Statute such against cases made and peace dignity of the State of Indiana.” was as follows: Prosecuting by “Comes now the of Indiana its Attor- defendant, ney, counsel, and comes now the Hearing sentencing aforesaid, upon as held pronounces judgment upon defendant and the Court now jury, verdict the in the second of murder conviction degree, defendant, Corbin, Norman Lee age years, is now to the Indiana sentenced State Prison for life.” Assignment Errors filed this Court asserts that overruling Appellant’s
the trial court erred in Motion for Appellant appeal (1) New Trial and asserts error in this (2) jury contrary verdict to law and jury verdict of the is not sustained sufficient evidence. brief, Appellant grouped alleged In his has two errors and we shall so consider them. n A careful review of the evidence leads us to the conclusion question presented is but one real appeal in this proceed shall stated, we to consider it. As above was indicted and degree tried for murder in the first of his twenty-one child, months old Anita. The found guilty degree of murder in the second and the court sentenced *7 prevailing him statutory commensurate with provisions. the degree by statute, Second murder is defined as follows: “Whoever, purposely maliciously, premedi- but without tation, being, guilty kills human is of murder in the degree, 10-3404, second ...” Anno., Burns’ Ind. Stat. § Repl. 1956 statutory degree difference between second murder and degree generally first murder in is that the latter mentioned crime, premeditated malice is an essential element and must alleged proved. be 10-3401, Section Ind. Bums’ Stat. significant Anno., Repl., part, provides: purposely premeditated malice, “Whoever and with . . . being, guilty kills human. is of murder in the first degree, . . .”
155'
“premeditated
“purposely
and mali-
malice”
The terms
premeditation”,
statutes,
ciously,
as used in
but without
the
only
given
apply
ato
of circum-
are difficult not
to
set
often
case,
prove.
particular
Hence,
also
in a
but
to
as to
stances
term,
jurisdiction
have
latter mentioned
the courts
this
upon
permit
from
proof
to
thereof to rest
inferences
come
reasonably
In
established facts or circumstantial
evidence.
justice,
principal
this
has
well established
the interest
been
law of this and other states.
the case
However,
principal
correlated
other well
be
to
charged
principals,
one of which is that a
established
proven
presumed
crime is
to>be innocent until
guilty beyond
jury
peers.
found
his
reasonable doubt
always
principal
applicable.
is
not
principal,
many instances,
This
appears
to have been
if
satisfied
inferences
circumstantial evidence
requirements
case meet the
court,
trial
always
who,
best,
at
do not
have the time and in some instances
provide
impartial
inclination
application
evidence, inferences and
important
circumstances to this most
phase
proof.
necessary
We think it is incumbent on this
Court,
weigh
review,
phase
not
the evidence
statutory prerequisite
conviction,
but to ascertain
proof
Mattingly
whether there is reasonable
thereof.
v. State
431, 438,
721, 723;
E. 2d
Cross,
N.
Jr. v.
611, 614,
pathologist Indianapolis, performed autopsy an and testi- mony findings as to his is as follows: October, “On performed the 27th of I autopsy an Lynn request Anita Corbin at the County of the Hancock performed I Coroner. it at Pasco Funeral Home in Green- field, Prosecuting Indiana. Present Attorney was the County, Hancock Coroner, members of the Indiana State Police, staff of Home, the Pasco my Funeral Greenfield Secretary, Mrs. Sherrill 1, 2, Shirk. State’s exhibits and 3 pictures baby are prior autopsy. the Corbin autopsy findings (1) were peritoneal free air in the cavity, (2) peritoneal hemorrhage rupture and a small portion intestine in the last of the duodenum and portion first jejunum, hemorrhage with a in the wall of the intestines in this area. There frothy was fluid ex-
truding from mouth, the nose and numerous bruises over body the entire surface. T believe the child intra-peritoneal died of hemorrhage secondary to a blood clot or hemotoma in the wall of the small rupture intestine and of the intestine in this area.’ On the miscroscopic basis of examination, [si.c] one could see evidence that the blood had clotted in the wall of this portion of the intestine and excited some inflammatory re- sponse ‘which would indicate that not, it it been perod there for of time’. I opinion have an based on experience and knowledge medical such lesions are commonly seen from blunt blows to the abdomen. *9 right I found evidence other trauma: abrasion of the sub-galea hemorrhages leg, or forearm and of left into right scalp, perital Also, and and left around the areas. hemorrhage right kidney was interstitial leaf of the diaphragm.” It would too mild be to remark other than this in- fant suffered a brutal attack cannot be or which excused con- Appellant completed, only doned under circumstances. had prior occurrence, a few a weeks six months’ term at having charged Farm, Indiana been with and convicted testimony the abuse Anita and another child. There was neighbor Appellant punish he had seen the deceased only prior present time to the incident. short objection Appellant, purporting
Over State’s Exhibit confession, be introduced into the evidence is as follows: Page 1
“Date No. 10-27-64 STATEMENT OF:
Norman Lee Corbin night Sunday, Saturday Saturday Either I I night, believe temper. my wining, lost everything Anita was went boom anything. and over, I Except then don’t remember after it was my I came back to senses and realized what had happened. hand as I Realized that Anita. my hit Hit her with My my I present. far as know. wife son were I, Norman Corbin Lee have read this statement and it is rights my give true. ment advised I have been this state- voluntarily and without duress or coercion.
Norman L. Corbin
s/
Witnesses J. Lewis Geo. Raymond Kemper H. Kirkpatrick”. Edwin W. objections raised to the introduction of appear State’s Exhibit to be corpus without merit. proven by evidence, delicti be as here, from which a committed a crime has been infer that reasonable could Hayden charged. v. State and nature character Holding (1963), 244 102; v. State 2d 199 N. E. 660; Ind. Brown 75, 190 N. E. 2d 184, 154 E. 2d N. in the evidence as to whether
There is
conflict
right
counsel, of
constitutional
had been advised
his
anything'
right
if
silent
advised
what
to remain
against him. The
court heard evi
trial
he said could be used
judicially determined that
the same
matter and
dence on the
rights, privileges
im
Appellant’s
violative of
was not
requirements.
satisfy
appears to
constitutional
munities
*10
116,
219
Hawkins
State
Ind.
Under all the equate Appellant’s we cannot conduct with hand, intent fist, to murder. The are belt not deadly weapons considered to per se, although be any one of them, or instruments, other can be in a wielded manner to deadly weapons. constitute them as It is obvious that what ever by Appellant, being instrument was used it resulted in deadly; however, Appellee, present case, in the is not en titled as a matter of law an inference that the instrument deadly. Hence, many used was this case is unlike others where deadly per weapon, se, indulges necesary inference Murphy 511; intent. v. State Miller v. Ind.
(1962), 242
This in our should be and is determinable permit necessary the lack of evidence to *11 inference of Appellee’s intent to kill evidence, reason of the own opinion precludes finding in our such or inference. Schlegel 374, 563; v. State (1958), 238 Ind. 150 N. E. 2d Todd 922; v. State 85, 101 N. 2d Yessen E. 92 N. 2dE. said, arguendo, charged It be that one with the com- mission of is for crime liable the results of his own conduct proof imply per- and that of crime itself will the intent part mit inference on of the trier of the facts of kill, necessary purpose to crime, or the intent to commit the here, and with malice. malice, kill, purpose to and hold that for We think uninterrupted flow from the free and must obtain finding statutory inference necessary itself to the crime to de- be left malice; will otherwise, conviction purpose with “guess.” upon speculation pend or sheer meaning obligation duty interpret Our defining application of such crimes and the of statutes sense case, meaning facts to the established sense charged particularly crime. Indiana, by its introduction into the evi- State of
Here the placed uncontra- Exhibit before dence State’s Appellant’s pertaining undisputed state dicted thereby. evidence and its bound Such of mind. The State is interpretation to sever the line serves proper and reasonable subsequent, from precedent to the from the of communication purpose inference inflicted to the mortal wounds kill with malice. transparently purpose me lack clear to that the
It is said, case with malice in the now before us must be kill and law, support verdict and will not as a matter only, I degree reason think that For this murder. of second should reversed. judgment of trial court be Jackson, J. concurs. Rehearing for
On Petition complains petition re Arterburn, J. point him, dispose of a raised hearing failed that we in the introduction State’s namely, the claimed error of a brief to the statement 4, which consists exhibit my temper” when he struck his “I lost effect that Judge disposed of in point is well daughter. think this We dissenting is stated that the trial opinion, in which it Mote’s *12 conflicting reference was heard court appellant constitutional advised had been whether rights, violation. no such was that there and found rehearing petition is overruled. for concur. Jackson, JJ.
Lewis, and Hunter C. J. opinion. majority original Mote, J. dissents to the Reported E. N. 2d 376. Note.— of Indiana.
Lawrence 4, 1968.] 31,089. April Filed [No. Johnson, of Clark, Clark, Richard C.
Alex M. Clark & Indianapolis, appellant. for Douglas Attorney McFadden, Dillon, General,
John J. B. Attorney appellee. General, Assistant charged by J. The affidavit two C. Lewis, (2) provisions of Theft under counts with the offense (1966 Suppl.), 10-3030(1) Statutes, Anno., §§ Burns’ Indiana (a) (a), Conspiring (2) Com- and the offenseof and 10-3030 (1956 Felony Statutes, Anno., Indiana under Burns’ mit Repl.), § 10-1101.