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Docket Number

No. 570S110.

Attorney(S)

Palmer K. Ward, of Indianapolis, for appellant. Theodore L. Sendak, Attorney General, Robert A. Smith, Deputy Attorney General, for appellee.

Judges

PRENTICE, J.

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Smart Summary

Summary of Opinion: Herman Livingston v. State of Indiana, No. 570S110 (Jan. 17, 1972)

Factual and Procedural Background

Defendant Herman Livingston was charged in two counts: the first alleging first degree murder and the second charging the killing of the decedent while in the perpetration of a robbery. He was found guilty of the lesser included offense of second degree murder on the first count and was sentenced to life imprisonment. No verdict was returned on the second count. The sole contested issue on appeal was the sufficiency of the evidence.

The underlying facts as presented in the opinion: the decedent was delivering fuel oil to the home of a witness, Mathis. Mathis directed the decedent to an oil tank, went inside and later heard a disturbance, a sound like a firecracker, and a cry of "Help." Mathis went outside and found the decedent lying on the ground with the defendant bending over him. Mathis recognized the defendant and called him by name; the defendant pointed a gun at Mathis, told him not to say his name again, and left. As the defendant fled down an alley, he fired a shot in Mathis' direction. The decedent was taken to the hospital, where it was discovered he had been shot in the head in addition to head wounds consistent with having been beaten. The decedent later died in the hospital, about seven weeks after the incident, from pneumonia and kidney infection resulting from the gunshot wound and without having regained consciousness.

Mathis initially gave false information to police about the defendant and his appearance; the following morning he returned to correct his statement and informed upon the defendant. At trial, Mathis was the only witness whose testimony implicated the defendant.

Legal Issues Presented

Whether the evidence was sufficient to support the conviction for second degree murder.
Whether there was sufficient evidence of intent and malice to sustain a conviction for second degree murder, where intent and malice were argued to be essential elements.
Whether the State was required to present ballistics evidence or to connect the gun taken from the defendant to the bullet that killed the decedent.

Arguments of the Parties

Appellant's Arguments

Mathis' testimony was inconsistent and unreliable because he initially lied to police and gave conflicting accounts; therefore, his testimony was incredible and could not support the conviction.
There was no evidence of the essential elements of purpose and malice necessary for second degree murder; the jury's failure to return a verdict on the robbery count (count II) amounted to an acquittal on that count and, appellant contended, should be treated as a negative finding on malice and purpose.
The State failed to offer ballistics evidence or to connect the gun taken from the defendant to the bullet that struck the decedent, and thus the conviction was unsupported.

Appellee's Arguments

The opinion does not contain a detailed account of the appellee's separate legal arguments beyond the State's reliance on the evidence summarized and the legal standards cited by the Court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gann v. State (1971), 256 Ind. 429, 269 N.E.2d 381	Where sufficiency of the evidence is raised on appeal, the appellate court will consider only that evidence most favorable to the State and all reasonable inferences therefrom.	The Court invoked this principle as the standard of review for the sufficiency challenge and limited its review to evidence favorable to the State and permissible inferences.
Asher v. State (1969), 256 Ind. 381, 244 N.E.2d 89	Support for the standard that the appellate court considers evidence most favorable to the State on sufficiency review.	Used alongside Gann to frame the standard of appellate review of sufficiency of evidence.
Taylor v. State (1971), 256 Ind. 170, 267 N.E.2d 383	The conviction will be affirmed if there is substantial evidence of probative value from which the trier of fact could reasonably infer guilt beyond a reasonable doubt.	The Court applied this rule to conclude that if substantial probative evidence existed (viewed in the State's favor), affirmation was proper.
Boss v. State (1970), 255 Ind. 222, 263 N.E.2d 546	Support for the standard that conviction is affirmed where substantial probative evidence allows a reasonable inference of guilt beyond a reasonable doubt.	Quoted with other cases to support the sufficiency standard used to evaluate the evidence.
Brown v. State (1970), 255 Ind. 227, 263 N.E.2d 534	Support for the substantial evidence/probative value standard on appeal.	Applied as part of the body of precedent establishing the appellate sufficiency standard.
Gaddis v. State (1969), 253 Ind. 73, 251 N.E.2d 658	The appellate court will not weigh the evidence nor determine the credibility of witnesses on appeal.	The Court relied on this principle to refuse to substitute its judgment for the jury's on credibility questions regarding Mathis' testimony.
Stock v. State (1966), 247 Ind. 532, 219 N.E.2d 809	Support for the rule that an appellate court will not weigh evidence or judge witness credibility.	Used with Gaddis and Sampson to reinforce that credibility determinations are for the jury.
Sampson v. State (1968), 251 Ind. 72, 238 N.E.2d 661	Another statement of the appellate principle not to weigh evidence or resolve credibility.	Applied to justify submitting Mathis' testimony to the jury despite conflicts.
Penn v. State (1957), 237 Ind. 374, 146 N.E.2d 240	A judgment must be sustained with evidence sufficiently credible to be of probative value (i.e., evidence must meet required standards of proof).	The Court acknowledged this rule but held it could not, as a matter of law, deem Mathis' testimony so lacking in credibility that it failed the standard; instead, credibility was for the jury.
Helms v. State (1968), 251 Ind. 335, 241 N.E.2d 244	Intent and malice need not be proven by positive evidence but may be inferred from the deliberate use of a deadly weapon in a manner calculated to cause death.	The Court applied Helms to hold that intent and malice could be inferred from the defendant's use of a deadly weapon and therefore the conviction could be sustained on that basis.

Court's Reasoning and Analysis

The Court began by stating the controlling standard of appellate review for sufficiency challenges: it would consider only that evidence most favorable to the State together with all logical and reasonable inferences to be drawn therefrom (citing Gann and Asher). Under that standard, a conviction is to be affirmed if there is substantial evidence of probative value from which the trier of fact could reasonably infer guilt beyond a reasonable doubt (citing Taylor, Boss, Brown).

The Court reiterated that on appeal it would not weigh evidence or determine witness credibility, reserving those functions to the jury (citing Gaddis, Stock, Sampson). Although Mathis' testimony contained inconsistencies and he had initially lied to the police, the Court held that it could not, as a matter of law, declare that testimony so lacking in probative value that it could not support the conviction; rather, it was incumbent upon the trial court and the jury to assess the weight and credibility of that testimony. The Court cited Penn for the proposition that judgments must be sustained by evidence sufficiently credible, but concluded that the question of credibility here was for the jury.

Addressing intent and malice, the Court rejected the appellant's contention that lack of a verdict on the robbery count amounted to a finding negating malice and purpose. The Court held that intent and malice need not be proven by direct positive evidence and may be inferred from the deliberate use of a deadly weapon in a manner calculated to cause death (citing Helms). Thus the jury could infer the essential elements required for second degree murder from the circumstances and the use of the weapon.

Regarding ballistics, the Court acknowledged the State did not offer ballistics evidence nor positively connect the gun taken from the defendant to the bullet that struck the decedent. The Court stated the State might have made a stronger case by doing so, but it was not required to present such evidence and no presumption (pro or con) arises from that omission.

On the whole, applying these principles to the facts (viewed in the light most favorable to the State), the Court concluded there was substantial evidence of probative value from which the jury could reasonably infer the defendant's guilt beyond a reasonable doubt.

Holding and Implications

Holding: The judgment of the trial court is affirmed.

Implications:

The defendant's conviction for second degree murder and life sentence were upheld.
The Court affirmed the application of established standards: on sufficiency review the appellate court views the evidence in the light most favorable to the State, does not reweigh evidence or decide witness credibility, and permits inferences of intent and malice from the deliberate use of a deadly weapon.
The opinion notes that the absence of ballistics evidence or a direct forensic connection between the gun and the fatal bullet did not require acquittal; the State was not required to present such evidence.
No broader or novel precedent was announced beyond application of existing Indiana appellate standards to these facts; the decision's direct effect is to affirm the conviction and sentence imposed on the defendant.

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HERMAN LIVINGSTON v. STATE OF INDIANA.

1. APPEALS — Sufficiency of Evidence in Question — Standard of Review. — The Indiana Supreme Court, where sufficiency of evidence is raised on appeal, will consider only that evidence most favorable to the State, together with all logical and reasonable inferences to be drawn there from. 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 appellant was guilty beyond a reasonable doubt. p. 623.

2. APPEALS. — The Indiana Supreme Court, on appeal, will not weigh the evidence nor determine the credibility of the witnesses. p. 623.

3. EVIDENCE — Credibility. — The Indiana Supreme Court has held that a judgment must be sustained within required standards of proof with evidence sufficiently credible to be of probative value. p. 623.

4. CRIMINAL LAW — Second Degree Murder — Intent — Malice — May Be Inferred. — Neither intent nor malice need be proven by positive evidence but may be inferred from the deliberate use of a deadly weapon in a manner calculated to cause death where defendant is found guilty of second degree murder. p. 624.

5. CRIMINAL LAW — Evidence — Ballistics Evidence — Requirement. — The State is not required to offer balistics evidence against one accused of murder with a gun, nor is the State required to connect the gun taken from the defendant as being the gun that fired the bullet into the decedent in order for the jury to find the defendant guilty as charged. p. 624.

PRENTICE, J.

— Defendant (Appellant) was charged in two counts, the first alleging first degree murder and the second charging the killing of decedent while in perpetration of a robbery. He was found guilty of the lesser included offense of second degree murder upon the first count and sentenced to life imprisonment. No verdict was returned upon the second count. The error assigned is addressed to the sufficiency of the evidence.

Decedent was delivering fuel oil to the home of the witness, Mathis, a nineteen year old boy. Mathis first met him near the front of the house and directed him to the oil tank at the side of the house and then went inside. He was using the telephone when he heard a disturbance in the vicinity of the oil tank, a sound like a firecracker and then a cry of "Help." He went outside and saw the decedent lying on the ground. The defendant was bending over him. Mathis recognized the defendant and called him by name, whereupon the defendant pointed a gun at him and told him not to say his name again. Mathis told Defendant that he had better leave, and he did so. As Defendant fled down a nearby alley, Mathis followed to the alley and looked in the direction of Defendant's flight. Defendant responded with gun shot. Mathis and his father carried decedent into the house and called the police. The police came, rendered first aid to the decedent's head wounds, that apparently came from having been beaten, and then called an ambulance. The ambulance took the decedent to the hospital, where it was learned that he had also been shot in the head. Decedent died in the hospital approximately seven weeks later from pneumonia and kidney infection resulting from the gunshot wound and without having regained consciousness. The only information that the police had been able to obtain from the decedent before he elapsed into unconsciousness was his name.

While the police were in the Mathis home, Mathis lied to them about the defendant and gave them misinformation concerning his appearance. He told them the same story at police headquarters the following morning, but just after leaving the building, he returned, told what really had happened and informed upon the defendant. At the trial, the only evidence implicating the defendant came from Mathis. He testified that he gave false information to the police on the night of the incident because, on that occasion, the police were talking to the decedent who gave them the defendant's description, and he was afraid that the defendant would think that he had informed. Mathis' testimony that the decedent had given the police the defendant's description does not conform to the police testimony that they only obtained his name from him; and it is the defendant's position that in view of this and Mathis' having told conflicting stories, his testimony becomes incredible and unbelievable and will not support the conviction.

When the sufficiency of the evidence is raised as an issue on appeal, this Court will consider only that evidence most favorable to the State, together with all logical and 1. reasonable inferences which may be drawn therefrom. Gann v. State (1971), 256 Ind. 429, 269 N.E.2d 381; Asher v. State (1969), 256 Ind. 381, 244 N.E.2d 89.

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 appellant was guilty beyond a reasonable doubt. Taylor v. State (1971), 256 Ind. 170, 267 N.E.2d 383; Boss v. State (1970), 255 Ind. 222, 263 N.E.2d 546; Brown v. State (1970), 255 Ind. 227, 263 N.E.2d 534.

This Court, on appeal, will not weigh the evidence nor determine the credibility of the witnesses. Gaddis v. State (1969), 253 Ind. 73, 251 N.E.2d 658; Stock v. State 2. (1966), 247 Ind. 532, 219 N.E.2d 809; Sampson v. State (1968), 251 Ind. 72, 238 N.E.2d 661.

This Court has held that a judgment must be sustained within required standards of proof with evidence sufficiently credible to be of probative value. Penn v. State (1957), 3. 237 Ind. 374, 146 N.E.2d 240. However, we cannot, as Defendant would have us to do, say, as a matter of law, that Mathis' testimony was not within the required standards of proof. Although subject to question and severe scrutiny, it nevertheless was incumbent upon the trial court to submit it to the jury for such weight and credibility as it, in its exclusive province, would ascribe to it.

Defendant next contends that there was no evidence of the essential elements of purpose and malice, which are necessary to sustain a conviction of second degree murder 4. and suggests that the jury's failure to return a verdict as to count II amounted to an acquittal upon that count, or a finding that in fact no robbery took place, which in turn amounts to a negative finding upon the questions of malice and purpose. We do not accept this theory. There was ample evidence from which the jury could find that the defendant shot the decedent. Neither intent nor malice need be proven by positive evidence but may be inferred from the deliberate use of a deadly weapon in a manner calculated to cause death. Helms v. State (1968), 251 Ind. 335, 241 N.E.2d 244.

The failure of the jury to return a verdict upon the count of killing in the perpetration of a robbery amounts to a finding of not guilty upon that count and has not harmed the defendant. However, we only infer therefrom that the jury failed to find all of the elements of that offense beyond a reasonable doubt. This need not be inconsistent with a finding of intent and malice as required under count I.

Defendant has also complained that the State did not at any time offer any ballistics evidence against him or connect the gun which was taken from him as being the gun that 5. fired the bullet into the decedent. It is altogether possible that the State might have made a stronger case had it done either or both of these things, but it was not required to do either, and we do not presume anything, pro or con, from its failure therein.

Finding no error, the judgment of the trial court is affirmed.

Arterburn, C.J. and DeBruler, Givan and Hunter, JJ., concur.

LIVINGSTON v. STATE