Vaughn v. StateVaughn v. State
- Reporters:
- , ,
- Before:
- Prentice
Thе defendant (appellant) was convicted upon two affidavits of Assault and Battery with Intent to Kill аnd sentenced to imprisonment for not less than two or nor more than fourteen years upon еach charge in a consolidated trial to the court. His motion to correct errors presents two questions: (1) sufficiency of the evidence upon the issues of intent to kill and self defensе and (2) error at law, in that the trial judge denied the defendant a continuance.
1. The evidencе adduced at the trial, viewed most favorably to the State, disclosed that as the proseсuting witnesses, Hoskins and Alexander, walked to their parked automobile in the parking lot of their plаce of employment, they were confronted by the defendant, who was nearby with a shotgun resting uрon the open door of his parked vehicle and aimed in their direction. The witnesses turned and ran, and as they did so, the defendant fired the shotgun three times, striking and injuring both. On previous occasions, thе defendant had threatened to kill Alexander and had, once previously gone to the residence of Hoskins with a shotgun and tried unsuccessfully to gain admittance.
We hold that the foregoing evidence warranted the trial judge in finding that the defendant had perpetrated an assault and battеry upon each of the aforementioned State’s witnesses with the intent to kill each, and that in so doing, the defendant was not acting in self defense.
When the sufficiency of the evidence is raisеd as an issue on appeal, this Court will consider only that evidence most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrоm. The conviction will be affirmed if, from that viewpoint, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the appel *159 lant was guilty beyond a reasonable doubt. Cravens v. State (1971), 257 Ind. 381, 275 N. E. 2d 4; Potter v. State (1971), 257 Ind. 370, 274 N. E. 2d 699; Fuller v. State (1971), 256 Ind. 681, 271 N. E. 2d 720.
Hoskins was the brother of the defendant’s estranged wife. The defendant testified that he had planned to follow the two witnesses, in order to determine the whereabouts of his wife and son, that Alexander had been hаving an extra-marital affair with his wife, and that both men were armed and had opened fire upon him рreviously to his having shot them. He further testified that he had no intention of firing upon them, that he did so only in self dеfense and that Hoskins had previously assaulted him. This Court, on appeal, will not weigh the evidencе nor determine the credibility of witnesses. Cravens v. State, supra; Potter v. State, supra; Fuller v. State, supra.
Intent need not be proven by positive evidence but may be inferred from the deliberate use of a deadly weapon in a manner calculatеd to cause death. Livingston v. State (1972), 257 Ind. 620, 277 N. E. 2d 363; Warren v. State (1963), 243 Ind. 508, 188 N. E. 2d 108; Schlegel v. State (1958), 238 Ind. 374, 150 N. E. 2d 563. The testimony of the prosecuting witnesses that they were unarmed, had not аccosted the defendant and had their backs turned and were fleeing at the time the defendant shot and injured them was sufficient to overcome the defendant’s claim of self defense.
2. Follоwing the testimony of the defendant, the following dialogue took place between the cоurt and defense counsel:
“THE COURT: Next witness, please.
MR. SIRMIN: We don’t have any other witnesses. His brother doesn’t have a phone and we could not......
THE COURT: I asked you if you were ready. You said, yes, ready for trial today. You said yes. Nоw, don’t get to be like the Prosecutor. When I ask you if you’re ready, *160 you’re ready, you understand. If you wеren’t ready, I would’ve given you a continuance, but, you said you were ready, right now, so, we’re reаdy.
MB. SIBM IN: That’s all, Your Honor.”
From the foregoing, we cannot conclude that a defense motion for continuance was entered. It is apparent, however, that such a motion would have been denied, and for purposes of this appeal, we will consider the colloquy as a motion and denial оf a continuance. This issue is governed by Trial Rule 53.4 (formerly 53.3), applicable in criminal cases by rеason of Criminal Rule 21. T.R. 53.4, in pertinent parts, being as follows:
“Upon motion trial may be postponed or continued in the discretion of the court . . . upon a showing of good cause established by affidavit on other evidence ... A motion to postpone the trial on account of the аbsence of evidence, can be made only upon affidavit, showing the materiality of the еvidence expected to be obtained, and that due diligence has been used to obtаin it; and where the evidence may be; and if it is for an absent witness, the affidavit must show the name and residеnce of the witness, if known, and the probability of procuring the testimony within a reasonable time . . . аnd that he is unable to prove such facts by any other witness whose testimony can be as readily рrocured ...” (Our emphasis)
Defendant had laid no foundation for continuance and, in fact, had earlier аnnounced that he was ready for trial. We, therefore, find no error in the court’s refusal to continue the proceedings after the trial had commenced.
Finding no error, the decision of the trial court is affirmed.
Arterburn, C.J., and DeBruler, Givan and Hunter, JJ., concur.NOTE.—Reported in 284 N. E. 2d 765.