*1 drinking shooting. night on The intent the de- important fendant proper in the It case. was issue instruct the on the intoxication as a defense. being shown, judgment
There no reversible error affirmed.
Givan, C.J.,
concur;
JJ.,
Prentice,
Arterburn,
DeBruler and
J.,
participating.
Reported at
Note. — Feggins
Dan State Indiana. January 25, [No. 676S176. Filed 1977.] *2 Haute, Smock, Terre G. William Wilson, Wesley Attorney General, T. Sendak, Theodore L. Attorney appellee. Deputy General, for Appellant convicted was of second DeBruler, J. (Burns 1975) trial
murder, 35-1-54-1 after Code § raising following jury. appeals, He issues: Sufficiency of the evidence. giving alleged an instruction concern- error in duty; ing jury’s alleged mentioning judge’s possi- error in the trial parole during
bility voir dire. “Trinidad,” occupied Bedeles, in John D. known as a house gambling operated in which he a establishment. Terre Haute morning persons September 27, 1975, were several In the gambling appellant and decedent in this house dice. gambling together; appellant win- Barnett were was Walter exchanged ning between from Barnett. Some words were lunged appellant at men, and Barnett with Barlow seven-eighths pocket with three and inch knife blade. Barnett kneeling twice, appellant the latter was either while at struck lying on the caused a small cut to floor. One the blows appellant’s chest over his heart.
Hearing disturbance, into room and Beckles came interposed telling Barnett, appellant himself between away Beckles, Barnett to leave. from out Barnett backed kept into the kitchen and He knife to the back door. in steps his stopped hand. Barnett door. on the outside back doorway. He still faced Beckles Beckles who stood carried a & revolver Smith Wesson .45 caliber rear pants pocket. gun Barnett. seized the and shot at immediately happened None of the after witnesses saw what the first shot, but most two fired. heard more shots Soon lying thereafter some of saw Walter witnesses Barnett Twenty-Second Streets, upon the intersection of one and Chase corner of witnesses which Beckles’ house located. Several saw kick the re- Barnett’s head and strike Carolyn accompanied Winston, volver. Barnett who had breathing the house night, him. went out Barnett *3 breathing when stopped she reached him stood but as she with him. Larry
Officer Depart- Trueblood of the Terre Haute Police policeman ment was the first arrive. He found Barnett lying in pulse Barnett the street. had no the officer could detect. Barnett had suffered bullet wounds the chest and right leg. lower lying Officer Trueblood found knife Barnett’s ground. closed pronounced by
Barnett autopsy was dead the corner. An revealed which bullet entered chest his had nicked causing bleeding. aorta, his death Appellant internal was hospital taken to where his cut was cleaned. gave
Appellant a written statement after advice and waiver rights. shooting He admitted Barnett, who he claimed was trying to him attack with the knife. The witnesses who could steps Barnett see as he stood on the back did not him at- see lunge tack or at
I. to show argues insufficient that the was evidence disprove degree murder elements of second he acted in self-defense. We contention that reviewing sufficiency repeat required in weigh evidence or do not of the evidence we Looking supports credibility. judge to the evidence which therefrom, deter- reasonable inferences the verdict and probative value from there evidence which mine whether is reasonably of each the existence trier of fact could find Ind. Horton element of the offense. v. 242. 354 N.E.2d 35-1-54-1, murder is defined in Code
Second provides: “Whoever, purposely pre- maliciously, but without being, guilty meditation, any kills human of murder degree. . .” the second . prove Thus the must killed a State human being, (2) purposely, Appel- with malice. lant the element malice contends proven. previously
This Court has malice1 defined thus: ‘any “An malice when is done with act is done with general.’ killing design purposeful homicide, In evil it is done neither in nor with malice if self-defense done provocation.” passion the heat of induced sufficient State, (1976) Shackleford McKinstry 154; State, (1975) 29, 338 may from the that malice be inferred often stated rule likely deadly weapon in of a a manner cause intentional use *4 great State, bodily harm, White v. death merely 156, 160, an alter 349 N.E.2d phrasing of same the ver rule. Therefore native degree murder, of both first and second Malice is an element 1. respect is the to both offenses. definition same and its diet will stand if there is could evidence from which reasonably appellant conclude Barn that when shot Walter ett,2 pas he acted neither in self-defense nor in heat provocation. sion induced sufficient Appellant relies Dickens support position appellant to acted
in a sudden heat. In Dickens the defendant shot her husband during episode unprovoked violence the husband. drinking taking deceased been had and various medica suddenly jar wife, tions. He threw a coffee at his instant smashed He then a chair. slammed a friend into cabinet. up picked pistol The defendant had her husband’s in order using prevent him from the defendant went back it. When husband, room in left which she had her he advanced upon her, and she shot him. fear, held that when such
We as to render defendant incapable reflection, may of cool “passion” be such a state of preclude We will malice. found the evidence in Dickens such defendant in that incapable case was forming Appellant urges malice. that the case at bar anal- ogous drinking to Dickens: Barnett behaving was irra- tionally; attacked he and wounded Barnett him. was also known as a violent He previously man. had been robbery convicted of rape. armed certainly provocation There was which could have aroused anger fear both However, could reasonably provocation have found that such was not sufficient preclude any malice, passion formation of or that thus ap- subsided. induced had Unlike the defendant Dickens, pellant shot Barnett some time unpro- after the decedent’s voked violence had ceased. Moreover, Dickens, it defendant’s husband who unpro- committed the irrational and violence; the fact spouse voked was the defendant’s engaging in such expected behavior could reasonably be does contend that he did not shoot Barnett.
679 subject. We compound distress to which she was the mental of malice. sufficient evidence there was find that setting alleges self-defense, in that he acted Appellant also applying to himself. self-defense, each of and out the elements required to presupposes that the His discussion given by appellant in his the facts believe the version Barnett was Barnett appellant shot while that statement: ample from However, evidence trying there was to stab him. appellant at that shot jury could have believed which the merely standing door- in Barnett the latter was while doorway pursued way; appellant Barnett from the shoot- that ing appellant him; Barnett fell the and that struck at when requirement no him. There therefore that and kicked self-defense, for under the most evidence discuss law jury’s genuine to verdict there is no favorable issue self-defense.
II. gave following court final instruction trial
jury: you you “I confidence that submit this case discharge grave resting you faithfully duty
will liberty bearing in that of the accused is not to mind judg- away nor taken careless or be trifled inconsiderate ment; the evidence careful and but if after a consideration law you beyond in the case are satisfied reason- a you guilty, Feggins, defendant, Dan able doubt your accordingly. just You verdict must be should return equally just manly, the State. As defendant duty charged responsible upright women with the men and you assisting justice, the administration of Court in sympathy put look stead- aside all sentiment and will fastly return evidence in the to the law and the case and alone it a verdict warranted as into court such [sic] thereby.” argues objected it to this instruction and provision of the Indiana Constitution contravenes right have to deter- “the cases shall all criminal authority Art. As and the facts.” 19. law mine proposition, this cites Burris In N.E.2d 928. Burris we noted that section restricting power “has never been a construed trial court to jury, declare the law but has been said in numerous cases that this must not done jurors manner calculated to bind the consciences of the right restrict them their under the Constitution to deter- mine the law for themselves.” 218 Ind. at giving We charging then held of an instruction *6 jurors they judges that, while well law as as of were they weigh facts, they the should the court’s as instructions weigh disregard the proper evidence “and neither without reason” was error. State, Beavers v. (1957)
In 118, 236 549, Ind. 141 N.E.2d 1, examining we 19, considered Art. depth, in considerable history development its the of area this of the law in jurisdictions. jurors other The in that case were instructed they may disregard arbitrarily law; that not the that it is duty their to determine the law as it is. held that We our confers power disregard Constitution the the instructions, jury’s court’s but that duty was to con disregard sider those instructions and not to lightly. them Beavers court’s instruction was therefore correct. dealing Beavers Since we have considered instructions duty jurors Holliday State, of in several In cases. v. 85, 679, approved 254 Ind. 257 N.E.2d instruc give part, stating, tion that must “a fair and laws interpretation” weakening so as to honest avoid “the safe guards by society protection,” erected for its and that contempt non-enforcement of laws creates for the law. In State, 269 N.E.2d we held Loftis v. instructing they that should that convict the defend they believed that elements of ant if the offense had been beyond citing proven doubt, a reasonable numerous Indiana State, In Certain v. 300 N.E.2d cases. giving substantially upheld 345, we identical instruc- given Appeals has also case. The Court tion to that in this State, (1976) Ind. Seay approved instruction. twice 884; Presley (1972) 152 App., giving no App. 637, There error this instruction.
III. jurors During prospective dire examination voir degree mur- inquired penalty for first whether court any juror could imprisonment, der, life was so severe panel asked whether not member of convict A the re- imprisonment imprisonment life mean would counsel appellant’s mainder The court summoned life. he intended instruct bench indicated argued regarding parole. Defense counsel against Eventually judge such an instruction. said regarding parole. ob- he Defense counsel would instruct jected though would so indicated that he the court had grounds punishment was not an issue instruct on the jury’s for the consideration. jurors:
The court then said to the *7 Gentlemen, is con- “Ladies and if the de—if defendant sentenced, degree and is I victed have in first of murder the suspend power to has no send him the Court to prison re- by for the send him to sentence. I must law during according says to mainder —ah—for a life. law sen — prior get paroled However, people prison in some do anyone if death, is and if to their natural that when he everyone gets for us to consider when it, that is not you would, eligible I would instruct parole, if ever. I is for in first murder people are convicted of that some who prison, sentence, in remain life die and receive a pa- people life, and some their natural the rest of there that, death, other than prior their natural and be to roled know, one knows go I and no because don’t I at into it can’t question?” that point in Answer time. this deprived him of this statement Appellant that contends trial. fair argues
The appellant State this issue be- that has waived objected judge cause instruction, he had before the after the no argument said he parole. would not has This instruct merit objection brought and does no credit to The the State. assigned error to reasonable the court’s attention with specificity opportunity avoid and afforded the court an to such an error. appel- argues provided
The State next that the record any jurors does to prospective lant not show whether whom actually accepted remark was addressed were jurors ,* he sworn the record to hence fails demonstrate prejudiced by However, the trial court the statement. only issued an order be included voir court’s dire agreement record, in pursuant State. The State contention that has therefore waived the the voir dire record insufficient. party provided
Neither has the Court with much assistance deciding in the substance issue. this Wilson cites State, App., 279, 346 N.E.2d in which Appeals correctly Court punishment that when the held charged for the offense jury, not to be fixed instructing trial court relating errs in on matters penalty (in case, pre-sentence credit confine ment) . Appeals Court of State, relied on Rowe v. 547, 576, 250 Ind. held that when penalty, was not called fix conduct of prosecutor arguing to the the defendant might paroled years required within two reversal. Rowe distinguished prior our decision in Watts 655, grounds rev’d other 338 U.S. 69 S.Ct. prosecutorial 93 L.Ed. where such permitted, comment had been because Watts had power the accused sentence either death or to life imprisonment. cycle, disapproved
In three other cases outside we have *8 prosecutor suggested jury actions the court which to the or
683 statutory- convicted, defendant, would serve if that the 180, N.E. (1929) 201 Ind. 166 State, Pollard v. In sentence. argument prosecutorial 779, disapproved a 654, A.L.R. we 84 although the defendant that Rowe, we held that similar State, (1933) Ind. Bryant 205 In error. v. had waived a conviction in case 372, 322, we reversed 186 N.E. jury if to the had intimated court which trial suspend sen convicted, court would defendant were State, (1956) 282, Deming 235 In tence. approval passage Coward v. Com from
51,
quoted with
holding
178
monwealth,
164 Va.
S.E.
to tell the
the sentence
the court
error for
it is
substantially diminished.
served, or
be
imposes
not be
will
will
disapprove
great majority
jurisdictions
appears that the
It
prose
either
or
such statements
court
(1966); Anno. 12 A.L.R.
informed
factors
could diminish
sentence, will
the defendant’s
convict
defendant of a more
they actually
that which
offense than
serious
him
believe
penalty
guilty of,
provide a
they
in order to
be
which
consider
appropriate.
more
When the
is called
to fix the
past
jury may
held
penalty, we have
consider
they
charged
determining
factors,
such
because
supra.
appropriate penalty.
State,
Watts Although
apply.
at bar
seem
In the case
Watts would
charged
degree
murder,
with first
Ind. Code
(Burns 1975),
provides
(a)
35-13-4-1
for manda-
tory
imprisonment sentence, appellant
be,
also
life
could
degree
was,
offense
convicted of
lesser included
of second
James,
re
murder.
In
The Court California has proposi- stated this tion thus:
rounding that invited to decide if “The function of the future. basis, the crime . . . reach its the defendant decision. [*] jury defendant’s v [*] consider the facts sur- is to The will be fit background, should for release legislature Authority established [corrections specialized body, agency] staff, aided a trained
685 questions. after It its decisions decide reaches such institution, prisoner a at corrective has received treatment op carefully been afforded supervised, been has has years maladjustment. portunity of From to understand Authority observation the defendant annotated potential. The prognosis can jury, as to his render an informed judgment hand, plunge based the other must into . conjecture; attempt perform . a function . on expressly nied it must impliedly de granted another institution and 631, 36 People Cal.2d Morse, it.” v. Rptr. 810, 820. See A.2d Cal. 388 P.2d 12 A.L.R.3d 65; White, also 27 N.J. State Broyles A.L.R.2d 1252. (Ky. 1954) Commonwealth, 267 S.W.2d in- it is Therefore, extent that is overruled to the Watts opinion. it is error for consistent We hold that *10 prosecutor to improper court to instruct and for the argue will a lesser that a convicted defendant serve jury him. the sentences sentence than that to which However, exclude consideration while is our intention to possible the post-conviction of of from diminutions sentences rigid efficacy
jury’s deliberation, the of a we doubt possibility prohibiting the of such rule of mention achieving result. diminution to the quite juries have are concerned with Studies shown actually punishment inflicted, and that discussion of to be punishment their deliberations. Kalven such often dominates Jury Zeisel, (1966). It is unrealistic to The American & jurors completely assume that are unfamiliar with such concepts parole good as or “time off for behavior” which length actually affect the of of sentences Discussion served. concepts appear frequently daily It such in the is news. equally they unrealistic assume that well-versed “good complicated sentencing, parole, of area Thus and time.” forbidding encourage by parole, jurors all comment on speculate contingencies parole on the basis of impressions, may their beliefs and bear individual which reality, or little no resemblance to to demonstrate con- danger knowledge.” cretely proverbial of “a little The best approach specula- prevention inappropriate to the of such tion, approach an and the which is fair to the accused inquiry upon inad- jury upon instruct their or first, that, vertent subject jury, introduction of the before the State is confine accused for authorized law to length second, full any by him, of received sentence but length any various devices exist which reduce could including defendant, pardon, sentence parole, received “good time,” length and that the the sentence contingent actually accused will future numerous serve certainty any events and cannot be determined with reasonable jurors at the time exclude of trial. For should this reason consideration of so as such devices from their deliberations speculation. not to fall into fruitless focusing jury This admonition at- will be more effective proper tention on than a bare instruction to considerations parole inquiring is no concern theirs. The act of parole jurors about shows that one more is indeed con- cerned, parole, if an improperly, possibility explanation properly able is not to consider parole will better effect than arbi- have trary prohibition.
In the case, prospective instant the court instructed the jurors prisoners that while some sentenced to life were paroled, and sentence, some served the full life this issue was jury’s substantially not for the The court consideration. com- ruling plied today, with the we make and did not err. We need argument. reach therefore the State’s harmless error *11 judgment of the trial court is affirmed. Givan, C.J., Prentice, JJ., concur; Hunter, Arterburn and opinion. J., dissents with
Dissenting Opinion
Hunter,
part
dissent from
opin-
J.
I
the majority
of
trial
ion
allows the
court
jury
instruct
affecting
parole.
powers
length
of
All
of
imposed
served on an
sentence
time
are vested in the execu-
government.
not be
such, should
tive branch of
As
good
parole
subjects
pardon,
on the
of
informed of
law
inquiry, the
Annot.,
(1954). Upon an
time.
Note. — Lemont v. State of Indiana.
Paul January 27, 1977.] 177S36. Filed [No. Nasser, Nasser, Felling Tabor, Terre
Woodrow S. & Haute, for Attorney O’Bryan, Sendak, General, R.
Theodore L. John Attorney appellee. Deputy General, for
Dissenting Opinion for the Hunter, of transfer J. I dissent from the denial following reasons. guilty
Petitioner Paul Lemont was found enticing place into in violation a minor an immoral imprisoned (Burns, 1975) ordered 35-30-4-1 and was Code § Following years. than nor more fourteen less two than perfected errors, motion Lemont the denial of the to correct appeal Appeals. Court argues trial court and the Court that both the Petitioner erroneously interpreted 35-30-4-1. See Appeals Ind. Code peti- App., 344 It is Lemont v. reading of the statute position that incorrect tioner’s knowledge trial to misinstruct court caused the