Ponos v. State , 243 Ind. 411 ( 1962 )

Arterburn, C. J.

— ^*This is an appeal from a conviction of the crime of assault and battery with intent to commit voluntary manslaughter. The appellant states that the “sole proposition in this appeal is that the evidence in this cause, without conflict or material facts, is not sufficient to establish appellant’s guilt of the crime of which he was convicted beyond a reasonable doubt, but that it was necessary for the trial court to pile inference upon inference and presumption upon presumption----”

The facts briefly are that the appellant, while attending a wedding party, became engaged in a dispute of minor proportions with another wedding guest; that the appellant left the premises following the dispute and went to his home where he picked up a deadly weapon, a shotgun, and he then drove back to the scene of the wedding party and from his moving car as he passed the front door, fired both barrels of the loaded shotgun at the house in which he knew persons to be, including the man with whom he had had the argument. At the moment the shots were fired, George Condes (not the person with whom he had quarreled) was leaving the party from the front door onto a well-lighted porch and was struck and wounded by the blasts from both barrels of the shotgun.

The evidence shows that there were two large fir trees about as high as the house on each side of the front walk, and it is claimed this prevented the appellant from seeing the front door and George Condes. This is a question of fact to be determined from testimony and from photographs introduced from which the judge might have drawn a contrary conclusion considering the speed of the car and other surrounding circumstances. Appellant admitted that he was resentful and that he fired the shots because he was angry and wanted to scare persons at the party. The appellant insists that he had •no criminal intent sufficient to constitute that necessary in voluntary manslaughter. The controlling factor here is the existence of “sudden heat” as distinguished from premeditated malice, which is a necessary element in a murder conviction.

In Walker v. State (1856), 8 Ind. 290, 292, this court stated:

“If from the battery committed by the defendant, death had ensued, the evidence in the record would, no doubt, be sufficient to have sustained a prosecution against him for the murder of Anderson. The intent to commit such felony would have been inferred from his act of shooting into the crowd; because every man is supposed to intend the necessary consequences of his own acts. But here, death has not ensued; still, however, the act of shooting produces the same evidence of an intent to murder, as though death had ensued. The defendant having committed a battery on Anderson, with a weapon likely to cause death, the jury were, in our opinion, fully authorized, in view of all the evidence, to find the intent as charged in the indictment----” To the same effect see: Kunkle v. The State (1869), 32 Ind. 220; Petillo v. State (1950), 228 Ind. 97, 89 N. E. 2d 623; Voght v. The State (1896), 145 Ind. 12, 43 N. E. 1049.

This court will not examine the record to determine whether or not the evidence sustains defendant’s construction of the evidence in favor of his innocence. It will only consider whether or not the evidence is sufficient for the jury or court to form a basis for its finding of guilty. The citation of Thacker v. Commonwealth (1922), 134 Va. 767, 114 S. E. 504 to the effect that “the law does not presume, because an assault was made with a weapon likely to produce death, that it was an assault with the intent to murder” is not the law as established in Indiana. In this case the evidence is uncontradicted that the appellant was angry and resentful; that he used a deadly weapon and that he fired it at a point where one might reasonably anticipate persons to be gathered. The court had the right logically and reasonably to draw the inference that he intended the probable consequences of his act to injure someone and that it was done in “sudden heat.” Madison v. State (1955), 234 Ind. 517, 130 N. E. 2d 35.

The appellant finally contends that the court, in making its finding and sentence, took into consideration the pre-commitment investigation and report. Although the record shows that the report was filed prior to the finding by the court that the defendant was guilty and prior to sentence, the record does not show that the appellant made any objection thereto, but stood by silently. Error cannot be claimed on appeal if no objection is made thereto at the proper time in the trial court and no specification with respect thereto is made in the motion for a new trial. 8 I. L. E., Criminal Law, §373, p. 424.

The judgment of the trial court is affirmed.

Landis and Achor, JJ., concur. Jackson, J., dissents with opinion in which Bobbitt, J., concurs.

* This case was reassigned at a conference of this court on June 26, 1962, and the writer of this opinion received it for the first time on that date.