Kelsie v. State , 265 Ind. 363 ( 1976 )

Arterburn, J.

On May 21, 1974, the Appellant, Jenna Pauline Kelsie, was found guilty of the second degree murder of Dale Leon Graham. The jury returned its verdict without stating the sentence to be imposed. On June 7, 1974, the trial judge sentenced the Appellant to imprisonment for a period of not less than fifteen nor more than twenty-five years. A motion to correct errors was filed on July 31, 1974. Arguments were heard on the motion and on August 26, 1974, the trial court took the matter under advisement. The motion was overruled on September 23, 1974.

I.

In order to set out the facts of this case, we consider first the contentions of the Appellant regarding the sufficiency of the evidence. It is asserted that the verdict is not supported by sufficient evidence upon all the necessary elements of the crime charged, second degree murder. It is also contended that the verdict is contrary to law because “the evidence did not negate the elements of self-defense by substantial evidence of probative value.”

It is well-established that this court, in determining the sufficiency of evidence, does not judge the credibility of witnesses or weigh evidence. We look at the evidence most favorable to the State and the reasonable inferences to be drawn from that evidence. A verdict will not be disturbed if there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Young v. State, (1975) 264 Ind. 14, 332 N.E.2d 103; Blackbum v. State, (1973) 260 Ind. 5, 291 N.E.2d 686; Jackson v. State, (1971) 257 Ind. 477, 275 N.E.2d 538.

The evidence at trial revealed that on the early evening of October 5, 1973, the Appellant drove to Boonville, Indiana from her home in Evansville. She had divorced the decedent about a week before, having been separated from him since July of 1973. The Appellant testified that she drove to Boon-ville to see if she had received any mail there and then decided to see a friend. While in Boonville, the Appellant went to a tavern and had some drinks with friends. While entering the tavern, she noticed that her ex-husband was in another bar next door. During the course of the night, the Appellant asked a friend to go and tell the decedent to join them. She opened her purse and displayed to him an automatic pistol, saying she was “aimin’ to kill the son-of-a-bitch.” The friend did not think that the statement was made seriously.

The decedent subsequently joined the Appellant and her companions. At about 1:00 a.m., October 6, 1973, he left the tavern, following two women with whom he was acquainted. He was talking to one of them when the Appellant also came out of the tavern. An argument ensued between the three persons which developed into a loud exchange of swearing, obscenities and name-calling. The Appellant, standing by her automobile parked nearby, was seen holding a gun in her hand.

The argument ended when the decedent’s two female friends left and the decedent returned to the tavern in which he had started his evening. At approximately 1:20 a.m. the Appellant began honking the horn of her car. The decedent was told that “one of your women is wantin’ you out there or honkin for you.” He went outside and was seen getting into the passenger side of the Appellant’s automobile. A scuffle then took place in the car and three shots were heard. The Appellant was identified as the woman behind the steering wheel. She admitted shooting the decedent, asserting that it was in self-defense.

The Appellant’s sufficiency argument consists largely of a summary of testimony which, it is asserted, “conclusively shows that said defendant shot the decedent in self-defense.” This asks us to weigh the evidence and judge the credibility of witnesses, which we cannot do. We think that the evidence was sufficient to establish that the Appellant killed the decedent with purpose and malice and thus committed second degree murder. Ind. Code § 35-1-54-1 (Burns 1975). The deliberate use of a deadly weapon in a manner likely to cause death or great bodily harm permits an inference that the defendant was acting with malice and purpose. White v. State, (1976) 265 Ind. 32, 349 N.E.2d 156. It is the province of the jury to determine the credibility of witnesses and to determine whether it will believe all, none, or any part of a witness’s testimony, and the determination of whether a homicidal act was carried out in self-defense is an ultimate fact to be decided by the jury. Swift v. State, (1961) 242 Ind. 87, 176 N.E.2d 117. Put simply, the jury was not required to believe the Appellant’s claim of self-defense. We find no error here.

II.

The Appellant also asserts that the trial court erred in overruling motions to strike parts of the indictment and to dismiss the indictment. The indictment in this case read as follows:

“The Grand Jurors of Warrick County, in the State of Indiana, good and lawful persons, duly and legally impaneled, charged and sworn to inquire into felonies, and certain misdemeanors, in and for the body of said County of Warrick in the name and by the authority of the State of Indiana, on their oaths present that JENNA PAULINE KELSIE, on the 6th day of October, 1973, at Warrick County, in the State of Indiana, did then and there unlawfully, feloniously, purposely, and maliciously, but without premeditation, kill and murder one DALE LEON GRAHAM, her former husband, a human being, by then and there unlawfully, feloniously, purposely, and maliciously, but without premeditation, shooting at and against the said DALE LEON GRAHAM, with a certain pistol, loaded and charged with gunpowder and bullets, thereby mortally wounding the said DALE LEON GRAHAM with one or more of said bullets, discharged and shot as aforesaid, said shooting having occurred in the front seat of a parked automobile which was in the possession of the said JENNA PAULINE KELSIE and was located at the time of said shooting in a public parking place in front of Kenny’s Tavern located at 118 South Third Street, Boon-ville, Warrick County, Indiana, from which mortal wound the said DALE LEON GRAHAM died shortly thereafter on said 6th day of October, 1973. And so the Grand Jurors aforesaid, upon their oaths, do present and charge that the said JENNA PAULINE KELSIE did unlawfully, feloni-ously, purposely, and maliciously, but without premeditation, kill and murder the said Dale Leon Graham in the manner and form aforesaid, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.”

The Appellant’s motion to strike parts of the indictment sought to strike the following: “and murder”; “her former husband”; “at and against”; “with one or more of said bullets”; and “said shooting having occurred in the front seat of a parked automobile which was in the possession of said Jenna Pauline Kelsie and was located at the time of said shooting in a parking place in front of Kenny’s Tavern located at 118 South Third Street, Boonville, Warrick County, Indiana.” The trial court subsequently struck from the indictment the words “her former husband.” The motion was overruled in respect to the other wording challenged.

The Appellant contends that the words so permitted by the trial court are “surplusage and detrimental to the accused and wholly foreign and prejudicial.” This contention is based upon language contained in Chambers v. State, (1937) 212 Ind. 667 at 670, 10 N.E. 2d 735 at 736: “This court on several occasions has held that an indictment or affidavit is not subject to a motion to quash because it contains evidentiary matters; that such matters will be treated as surplusage and are not prejudicial to the rights of the defendant, unless they are wholly foreign to the subject-matter of the indictment or affidavit.” While the Appellant’s contention arises out of a different context in terms of procedure (a “motion to strike” as opposed to a motion to quash) and in terms of statutory basis (the statutes regarding indictments have been amended since Chambers), we think that the controlling principle here remains. We can find no reversible error if the Appellant was not prejudiced. Cf. Doss v. State, (1971) 256 Ind. 174, 267 N.E .2d 385. The language complained of here is not of the character sufficient to render the indictment defective and we can find no error in the overruling of the Appellant’s motion to strike.

The Appellant’s motion to dismiss the indictment asserted that the alleged crime was not stated with sufficient certainty and that the facts stated in the indictment did not constitute a crime. The crime of second degree murder is defined as “[w]hoever, purposely and maliciously, but without premeditation, kills any human being. . . .” Ind. Code §35-1-54-1 (Burns 1975). A simple reading of the indictment indicates that the facts were stated with sufficient certainty and constituted a crime under the statutory definition. The Appellant’s supporting arguments are equally unpersuasive. It is contended that the indictment failed to allege the exact time of the crime. The indictment need only state the time of the crime “with sufficient particularity to show that the offense was committed within the statute of limitations.” Ind. Code §35-3.1-1-2 (Burns 1975). Time of death is not of the essence in a case of murder. Buchanan v. State, (1975) 263 Ind. 360, 332 N.E.2d 213. Assertions that language in the indictment was prejudicial merely restates contentions of the Appellant’s motion to strike. We find no language so prejudicial that the indictment should have been dismissed.

III.

Error No. 2 set out in the Appellant’s motion to correct errors states that the trial court erred in overruling defense objections to the appointment of a “special prosecutor.” We have reviewed the record and find nothing which indicates that a “special prosecutor” was appointed. The relevant orderbook entry reads simply: “Comes now Robert W. Lensing and appears of counsel for the State of Indiana.” The record shows that this attorney worked with and under the supervision of the Warrick County prosecutor, who was present at all stages of the proceedings.

The record further reflects that the prosecuting attorney requested that this attorney be permitted to appear for the State, and that the trial court appointed him for that purpose. “The court in a criminal prosecution may allow the prosecuting attorney additional counsel, and assisting counsel may be employed by one interested in the prosecution.” 8 I.L.E. Criminal Law §395 at 43 (1971). The trial court did not err here.

IV.

The Appellant also presents the question of whether the trial court erred in refusing to give to the jury Defendant’s Instructions Nos. 4, 5, 6, 7, 8, 9, 11, 12, and 13. We note at the outset that the Appellant tendered thirteen instructions to the trial court, three of which were accepted and given to the jury. A defendant is permitted under our criminal rules to tender only ten instructions, unless the trial court fixes a greater number in a particular case. Ind. R. Crim. P. 8. No error may be predicated upon the refusal to give instructions in excess of the number permitted under the rule. Buchanan v. State, supra. Since the trial court did not exercise its discretion and permit the tender of more than ten instructions in this case, the Appellant cannot complain of the court’s refusal of at least three of his tendered instructions.

More importantly, however, we find that the substance of these tendered instructions was contained in instructions which were given by the trial court. It is not an error to refuse an instruction which is adequately covered by other instructions which are given. Fuller v. State, (1973) 261 Ind. 376, 304 N.E.2d 305. Defendant’s Instructions Nos. 4, 5, 6, 7, 8 and 12 concerned the use of force in self-defense. This was adequately covered by Defendant’s Instruction No. 2 and Court’s Instructions Nos. 23, 35, 23.33 and 23.33A, which were given to the jury. Defendant’s Instructions Nos. 9 and 11 essentially stated that the use of a deadly weapon in self-defense is not evidence of malice. This same principle was covered by Defendant’s Instruction No. 10, which the trial court gave.

The Appellant apparently argues that since a jury is composed of laymen, repetition is necessary to communicate to it principles of law. We implicitly rejected this proposition in our promulgation of Ind. R. Crim. P. 8, and have consistently rejected this notion in our opinions. See Fuller v. State, supra. The Appellant has not included in his brief any argument or citation regarding Defendant’s Instruction No. 13. The issue of whether that instruction was properly refused is thus waived. Ind. R. Ap. P. 8.3(A) (7); Green v. State, (1971) 257 Ind. 244, 274 N.E.2d 267.

The Appellant also challenges Court’s Preliminary Instruction No. 1.13, which was given over defense objection:

“1.13: PROTECTION OF THE INNOCENT

The Rule of law which presumes that the defendant is innocent and which requires proof beyond a reasonable doubt is not intended to allow anyone who is guilty of crime to escape punishment. It is a humane rule to protect the innocent and to guard, as much as possible, against the danger of convicting a person who is innocent and unjustly accused of crime.”

This instruction was but one of several instructions given to the jury on the presumption of innocence and the burden of proof beyond a reasonable doubt. All instructions are to be read together and construed as a whole. Cockrum v. State, (1968) 250 Ind. 366, 234 N.E.2d 479; 8A I.L.E. Criminal Law § 581 (1971). The instruction complained of here is correct and, in the context of the other instructions given, was not so prosecution-oriented that the Appellant can be said to have been prejudiced.

The Appellant’s contention that the trial court erred because it did not instruct the jury on the penalty for manslaughter, a lesser included offense of second degree murder, was not put before the trial court in a timely fashion. Since no timely objection to the Court’s instructions in this regard was made, and no instruction on the matter was tendered by the Appellant, this issue is not properly before us for consideration. Míreles v. State, (1973) 261 Ind. 64, 300 N.E.2d 350. In a related issue, the Appellant asserts that the form for returning a verdict of guilty of manslaughter provided the jury by the trial court was defective because it did not include a statement of the punishment for the offense. By statute, a verdict of guilty for a felony other than murder or treason is not required to state the punishment. Ind. Code §§ 35-8-2-1— 35-8-2-3 (Burns 1975).

V.

We address finally the contentions that the trial court improperly sentenced the Appellant. Specifically, it is asserted that the form of the verdict for second degree murder submitted to the jury was improper because it failed to allow the jury to fix a penalty. It is also asserted that the trial court erred when it, rather than the jury, sentenced the Appellant. We agree that the trial court erred here. Under the circumstances of this case, however, we think that the error was harmless.

The second degree murder statute, Ind. Code § 35-1-54-1 (Burns 1975), provides for alternative sentences:

“Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and, on conviction, shall be imprisoned in the state prison during life, or shall be imprisoned in the state prison not less than fifteen nor more than twenty-five years.”

Ind. Code § 35-8-2-1 (Burns 1975) provides for jury sentencing with exceptions:

“When the defendant is found guilty the jury, except in the cases provided for, in the next three [two] sections, must state, in the verdict, the amount of fine and the punishment to be inflicted; where the plea is guilty, or the trial is by the court, the court, subject to the same exception, shall assess the amount of fine and fix the punishment to be inflicted.”

Ind. Code § 35-8-2-2 (Burns 1975) and Ind. Code § 35-8-2-3 (Burns 1975) provide the exceptions, convictions for murder or treason. In this case, the statutes clearly require the jury to state the sentence in its verdict. Brown v. State, (1969) 252 Ind. 161, 247 N.E.2d 76. However, the sentence imposed by the court here was the minimum sentence provided for under the second degree murder statute. The Appellant thus suffered no harm. The jury’s verdict, as well as the trial court’s sentence, should stand.

We recognize that there has been some confusion among the cases on the question here. Some of these cases may be distinguished on the facts, since the sentences imposed were greater than the minimum and, obviously, the defendants may have been prejudiced. Crooks v. State, (1971) 256 Ind. 72, 267 N.E.2d 52; West v. State, (1950) 228 Ind. 431, 92 N.E.2d 852; Limeberry v. State, (1945) 223 Ind. 622, 63 N.E.2d 697. In Lane v. Hobbs, (1965) 246 Ind. 640, 206 N.E.2d 182, we relied on Rule 2-40B as a vehicle to correct an erroneous sentence.

In Kolb v. State, (1972) 258 Ind. 469, 282 N.E.2d 541, the contention was made by the defendant, having been tried on two charges, that because the jury had left blank the sentence on the verdict on one charge, the verdict on the charge on which the jury properly fixed a sentence was invalid. We did say that the proper procedure for the court would have been to send the incomplete verdict back to the jury for its completion, which is true. We concluded that “the fact that one verdict is defective does not necssarily mean that the verdict on the other count is automatically reversible.” 258 Ind. at 481. However, we think that the more logical reasoning where the Appellant can show no harm or prejudice, is stated in Palmer v. State, (1926) 198 Ind. 73 at 77, 152 N.E. 607 at 608 r

“The court, after overruling the motion for a venire de novo, pronounced sentence on appellant that he be imprisoned in the Indiana State Prison for the determinate period of ten years. As that was the shortest period of time for which the jury lawfully could have found that he should be imprisoned, if he was guilty of the offense charged, appellant was not harmed by the failure of the verdict to fix the punishment, nor by the action of the court in overruling his motion for a venire do novo.”

Procedural matters as to fixing' sentences of the character involved here are not always such that an error therein requires a new trial. This is particularly true where the defendant can show no harm. We have made available under Ind. R. P.C. 1, § 1(a) (3), a remedy for a defendant to have a sentence corrected where he has been harmed.

The judgment of the trial court is affirmd.

Givan, C.J., Hunter, Prentice, JJ., concur; DeBruler, J., dissents with opinion.