Green v. State ( 1973 )

Sullivan, J.

The appellant-defendant Green was found guilty of assault and battery with intent to kill after trial by the court sitting without a jury. He was committed to the custody of the Department of Corrections to be imprisoned for not less than two years nor more than fourteen years. The charging affidavit alleged that Green committed the offense “by driving his automobile at the said Carl E. Cambridge with the felonious intent then and there and thereby to kill said Carl E. Cambridge.”

The sole issue presented upon appeal is the sufficiency of the evidence to establish Green’s intent to kill as opposed to his admitted intent to merely escape apprehension and arrest for shoplifting. He does not assert error with respect to the admission of any evidence.

The somewhat bizarre facts disclose that Cambridge and Ronald Henry, both Marion County deputy sheriffs, were working during their off-duty hours on December 26, 1971, at Block’s department store in Lafayette Square Shopping Center in Indianapolis. About 4:30 P.M. of that day defendant, a 25 year old male dressed in women’s clothing, escaped the grasp of officer Henry who had arrested him for shoplifting. Officer Cambridge, outside the store, was notified, given a description of defendant and began looking for him. Cambridge observed him on the berm of nearby West 38th Street as Green entered an automobile driven by one James Harris who had stopped to pick him up. There was no evidence that Harris and Green had any prearrangement or that they knew each other.

Deputy Cambridge and the defendant are the only witnesses who testified concerning events after defendant escaped from the store.

Cambridge’s verbatim testimony, on direct examination, insofar as pertinent is as follows:

“I saw Johnny Green walking east on 38th Street. I yelled at him to stop at which time there was a white station wagon, I believe it was, it was a white car I think, it was driven by James Harris, had stopped and pulled over to the berm of the road eastbound on 38th Street thinking he was picking up a female. The car pulled over, Johnny Green ran toward the car, I was running across 38th Street trying to intercept him before he got into the car, trying to intercept her before she got into the car, as she got into the car I drew my revolver, identified myself, told her to halt, she went ahead and jumped into the car and locked all four doors, at which time Deputy Watson reached my side. I started around to the passenger side of the vehicle, at which time Johnny Green slid across the center of the front seat, the car lunged forward, the driver Mr. Harris re-applied the brakes, there was a scuffle in the front seat for the keys. Mr. Harris finally came up with them and bailed out of the car, at which time we finally got Miss Green out of the car. [When the car lunged forward] I was starting around the car, around the front of the car, figuring if I could go around to the back of the car, either way it went, she was going to try to drive off- without us being there. I didn’t think she would try to run over me. I went around in front of the car to keep the car from fleeing to go to the passenger side to try to get into the passenger side to get the suspect out. [When the car lunged forward, I was] in front of it. In the center of the car. Well, the car lunged forward striking me on the leg, knocking me off balance a little bit, I threw my hands on the hood. I still had the revolver in my hand, yelled out ‘you hit me again and I kill you’.”

Cambridge also testified on direct examination without objection that he later talked to defendant in jail, in response to a request from defendant:

“Mr. Green related to me at the time he was sorry he had tried to run over me with the car, he wanted a quick and speedy trial, he wanted to get it out of the way and start pulling his time as soon as he could.”¹

The only significant testimony added on cross-examination is the following:

“Q. And how far did the car lunge forward?

A. You mean in feet? I don’t have any idea how far forward it lunged forward, it knocked me back three or four steps.

Q. Alright, so it moved about three or four steps, is that about right?

A. After it hit me, yes. I was probably two, maybe three feet, well the length of my arm away from the front of the car when the car lunged forward.

Q. I see, and you were able to get out of the way, is this correct?

A. I was knocked back.

Q. You were knocked back?

A. And laid up on the hood to keep from getting run over.

Q. Alright, and you were not injured in any way or were you?

A. Got some bruises but that’s about it.

Q. Some bruises, alright. And then you went around to the side of the car, is this correct, after this happened ?

A. Well sir, after that happened there was the scuffle in the front seat for the keys, Mr. Harris . . .

Q. You witnessed this?

A. Yes sir, I did. There was the . or Mr. Harris finally got the keys away from Johnny Green, he bailed out of the car at which time Dave Watson who is a Special Deputy also got him out of the car and I went back around to the drivers side of the car.”

In his testimony, defendant denied that he had apologized to Officer Cambridge and said that he had told him that it was Mr. Harris who caused the car to lurch forward and that he (defendant) pressed the brake. The court obviously did not believe this testimony. Defendant did admit that he saw the officer standing in front of the car at the time the car lurched forward, and he testified that although it was not his intent to kill Cambridge, it was his “intention to get away from the officer.”

We affirm the judgment below upon the issue presented for our consideration but deem it advisable in light of our colleague’s dissenting opinion to consider and discuss the legal principles we hold applicable to the case at bar as opposed to certain other principles of a related nature but which are not deemed applicable.

Much is contained in the case law and treatises with respect to proof of the corpus delicti — the substance or body of the crime. The necessity for proof of the corpus delicti in the context of the facts before us presents for possible consideration two separate and distinct legal principles. The first, which we deem to be the only appropriate principle here involves the sufficiency of the evidence to prove defendant’s guilt beyond a reasonable doubt. If the evidence is sufficient for such purpose, it is necessarily sufficient to establish the corpus delicti also beyond reasonable doubt. In such instances therefore, it is superfluous to view the proceedings in terms of “corpus delicti.”

The second legal premise — that upon which the dissent is apparently founded and one which we deem inapplicable to the facts before us is that a conviction may not rest solely upon a confession of guilt for as stated in Hogan v. State (1956), 235 Ind. 271, 275, 132 N.E.2d 908:

“It is well established law, not only in Indiana but practically all jurisdictions where the common law prevails, that the state cannot prove the commission of a crime by the extra-judicial confession alone of a defendant. To hold otherwise runs counter to the generally accepted principles of the common law, that one may not be induced to convict himself.”

To protect against such eventuality, it is generally held that a confession is not admissible in evidence unless there is independent proof of the corpus delicti. Such independent proof, however, need not be beyond a reasonable doubt. Patton v. State (1962), 242 Ind. 477, 486, 179 N.E.2d 867 somewhat apropos of the matter before us so held:

“[Ajppellant admitted to police and newsmen that he owned the car and was driving it at high speed over the course above described, prior to and at the time of the collision. However, appellant objected to the admission of testimony regarding these statements made by him on the ground that the corpus delicti had not been proved independent of these admissions and therefore the admission of these statements in evidence was error. Although there is no direct and positive testimony that the car, which was the subject of the above testimony, was, in fact, the appellant’s, and that it was driven by him, all of the evidentiary facts which were in evidence combine to establish a logical inference which supports the ultimate facts that the car was the same and was being driven by appellant, since these ultimate facts are more logical and probable under the evidentiary facts submitted than is true of the contrary. Therefore, it was proper to admit the above testimony over the objection of the defendant.”

As in the Patton case, the statement of Green as testified to by Deputy Cambridge is not a confession in the pure sense. It is rather an admission. A confession must be sufficiently comprehensive as to embrace all essential elements of the crime. As stated in Wharton’s Criminal Evidence (13th ed.) § 663:

“An admission is an acknowledgment by the accused of certain facts which tend, together with other facts, to establish his guilt; while a confession is an acknowledgment of guilt itself. An admission, then, is something less than a confession and, unlike a confession, putting to one side the problem of corroboration, an admission is not sufficient in itself to support a conviction.”

The distinction was well drawn in State v. Masato Karumai (1942), 101 Utah 592, 126 P. 2d 1047 as follows:

“A confession is the admission of guilt by the defendant of all the necessary elements of the crime of which he is charged, including the necessary acts and intent. An admission merely admits some fact which connects or tends to connect the defendant with the offense but not with all the elements of the crime.”

In no sense then could a conviction rest solely upon an admission. Its import is directed to less than all the essential elements of the crime, e.g., in the case at bar, to the element of intent. The danger guarded against by the evidentiary doctrine which requires corroboration of a confession is not therefore present with respect to an admission. Notwithstanding a degree of doubt as to the rationality of a rule which requires than an admission as well as a confession be inadmissible unless the corpus delicti has been proved by independent evidence,² many cases have so held. See Watts v. State (1950), 229 Ind. 80 at 100, 95 N.E.2d 570; Patton v. State, supra, 242 Ind. 477 at 486; Hunt v. State (1939), 216 Ind. 171 at 178, 23 N.E.2d 681; Anno. 45 A.L.R.2d 1316.

It is important, however, to distinguish the proof of corpus delicti necessary to render an extra-judicial confession admissible as opposed to the degree of proof necessary to sustain a conviction. Hopkins v. State (1973), 156 Ind. App. 272, 296 N.E.2d 151.

The distinction observed in Hopkins v. State, supra, was detailed in Jones v. State (1969), 253 Ind. 235, 244, 252 N.E. 2d 572:

“Although the use of corpus delicti as part of the proof in a criminal case had its origin as a cautionary measure in our criminal jurisprudence, courts at times have forgotten the purpose or object of the principle. In some instances the meaning has been expanded to a point where the entire crime must be proved to make out proof of the corpus delicti, although in some instances, as in our Court, we have said that the proof need not be beyond a reasonable doubt. Whether or not any real purpose is served in giving corpus delicti a broad and expansive meaning has been a subject of considerable confusion to the courts of the various jurisdictions. Black’s Law Dictionary, 4th Ed. gives a. meaning to corpus delicti which, in our opinion, is a correct one: ‘Corpus delicti. The body of a crime. The body (material substance) upon which a crime has been committed, e.g., the corpse of a murdered man, the charred remains of a house burned down. In a derivative^ sense, the substance or foundation of a crime; the substantial fact that a crime has been committed.’

Wigmore recognizes the confused judicial opinions in this field. Wigmore on Evidence, Third Edition, Vol. VII, § 2072, p. 401, defines corpus delicti as follows: ‘The meaning of the phrase “corpus delicti” has been the subject of much loose judicial comment, and an apparent sanction has often been given to an unjustifiably broad meaning. It is clear that an analysis of every crime, with reference to this element of it, reveals three component parts, first, the occurrence of the specific kind of injury or loss (as, in homicide, a person deceased; in arson, a house burnt; in larceny, property missing) ; secondly, somebody’s criminality (in contrast, e.g. to accident) as the source of the loss, — these two together involving the commission of a crime by somebody; and thirdly, the accused’s identity as the doer of this crime.’

Wigmore than proceeds to point out that if only the first element be required to prove the corpus delicti, namely, the mere death or the burnt house, it would be sufficient as a cautionary rule, and apparently he prefers such a limited meaning for corpus delicti. Pie further points out, however, that the majority of the courts require not only proof of the first element, but the added element that criminality was involved, namely, that the homicide was felonious or the burning of the house was caused by some criminal act such as arson. He states to require the third element, namely, the identity of the accused or that he was specifically involved as part of the proof of corpus delicti, would be absurd and as a result would be synonymous with proving the whole crime, independent of any confession, and would in a sense eliminate the value of confessions.” (Emphasis supplied) And in Hayden v. State (1964), 245 Ind. 591, 595, 199 N.E.2d 102:

“This court has stated the reason for this rule, as follows: ‘The purpose of requiring the proof of the corpus delicti in a criminal case is none other than to corroborate a confession before it is admissible. . . .

‘Proof of the corpus delicti should not be confused, as it sometimes is, with the recognized requirement in all cases that the state must prove beyond a reasonable doubt all the material allegations as charged. . . . Proof of the corpus delicti sufficient to corroborate a confession and make it admissible does not relieve the state of the burden of proving the crime as charged beyond a reasonable doubt. . ..’ Brown v. State (1958), 239 Ind. 184, 202, 203, 154 N.E.2d 720.”

As stated in Messel v. State (1911), 176 Ind. 214, at 217, 95 N.E. 565, two things are necessary to be proved beyond a reasonable doubt before one may be convicted, namely the corpus delicti — the fact that the crime charged has been committed — and the agency of the defendant in the commission of that crime. Underhill, Criminal Evidence (6th ed.) § 35 observes:

“It is sometimes said that corpus delicti also includes the criminal agency of the accused, but this makes the corpus delicti the same as the whole charge, and it is more accurate to say that it includes only the end result and the criminal agency of someone but not of any particular person.”

In the case before us, the two factors are inseparable. Upon the evidence of record, no crime at all was committed unless the defendant Green committed it. In this context then, the following language from the Messel case is given relevance:

“The extra-judicial confession of the defendant alone is not sufficient to prove the corpus delicti; but such confession may be considered with independent corroborative facts, not of themselves sufficient to prove the corpus delicti beyond a reasonable doubt, to prove that the offense was committed.” 176 Ind. at 219

The sole issue argued by appellant concerns the sufficiency of the evidence to support the conviction as to Green’s intent to kill. Insofar as “corpus delicti” proof bears upon this issue, it must be shown beyond a reasonable doubt. Under the factual circumstances here presented, it is only the defendant — not the driver, Harris — who could by his intent make the act of causing the car to lurch forward criminally colorable. The appellant’s contention with respect to sufficiency of evidence is therefore inextricably related to proof of “corpus delicti” as discussed by Judge White in his dissent. Under the facts here, proof that the crime charged was in fact committed by someone would support conviction of Green.

In Parker v. State (1949), 228 Ind. 1, 7, 88 N.E.2d 556, the Supreme Court said:

“In Indiana the independent evidence alone need not be sufficient to establish the corpus delicti beyond a reasonable doubt, but there must be some evidence of probative value aside from the confession to prove that the crime charged was committed. When there is some independent evidence tending to prove that the crime charged has been committed by someone the confession may be considered with the independent corroborating facts in determining whether the corpus delicti has been established beyond a reasonable doubt. Griffiths v. State, supra; Messel v. State, supra; Hunt v. State, supra.

“In Griffiths v. State, supra, this court said at p. 558:

‘. . . We are mindful of the rule that the extra-judicial confession of a defendant is not alone sufficient to make out the corpus delicti, and that as applied to a prosecution for larceny it is required that there must be proof of the commission of the particular larceny charged. We deny, however, that such is the operation of the rule that the confession of the defendant can not in any case be used to accelerate the force or inferences concerning the fact of ownership, or that his confession can not be considered, along with the proper corroborative evidence, in determining whether the fact of the commission of the crime charged has been made out.’ ”

Likewise in Hunt v. State (1939), 216 Ind. 171, 178, 23 N.E.2d 681:

“Proof of the corpus delicti may be made by circumstantial as well as by direct evidence, but the mere extra-judicial admission or confession of the accused, uncorroborated by other evidence, will not establish the corpus delicti. It does not follow, however, that the corroboratory proof alone must be sufficient to establish the corpus delicti beyond a reasonable doubt, or that the admissions or confession of the accused, when corroborated by other evidence, may not be considered in determining if the corpus delicti has been established.”

And in Watts v. State (1950), 229 Ind. 80, 101, 95 N.E.2d 570, the court said:

“In Indiana, the independent evidence alone need not be sufficient to establish the corpus delicti beyond a reasonable doubt, but there must be some evidence of probative value aside from the admissions to prove that the crime charged was committed. When there is some independent evidence, as here, tending to prove that the crime charged has been committed by some one, the admissions may be considered with independent corroborating facts in determining whether the corpus delicti has been established beyond a reasonable doubt.”

Notwithstanding therefore, some language in Indiana cases seemingly to the contrary, the rule in Indiana, as generally elsewhere, is to the effect that while a conviction may not rest solely upon a confession of the accused and while there must be independent proof of the corpus delicti before a confession is admissible, such establishment for purposes of determining guilt beyond a reasonable doubt may be made by a consideration of such independent evidence together with the confession. See Am.Jur.2d, Evid. §§ 530 and 1142. See also 127 A.L.R. 1130 at 1138, 45 A.L.R. 2d 1316 at 1327.

In the cause here considered, it is important to reiterate that defendant made no objection to the testimony of Deputy Cambridge concerning Green’s statement to the effect that Green was sorry he tried to run Cambridge down. Thus, in keeping with the principles enunciated, such statement whether an admission or confession was proper to be considered together with all other evidence as determinative of Green’s guilt.

We are concerned in this appeal solely with the sufficiency of the evidence to support Green’s conviction and not with the admissibility of his inculpatory statement. Dispositive of this point, vis a vis the position taken in the dissenting opinion herein, is we think the following holding in Dunbar v. State (1961), 242 Ind. 161, 165, 177 N.E.2d 452.

“Likewise, the rule requiring proof of corpus delicti, being only one of caution to prevent a defendant from being convicted solely on his own testimony (extra-judicial admissions), such proof is only a prerequisite or condition precedent to the competency of a confession. The requirements are only that it be corroborative in order to make the confession admissible and not that the proof in that respect and at that point in the trial be beyond a reasonable doubt, since the confession, if admissible, and any other evidence may be thereafter weighed and considered for that purpose. Parker v. State (1949), 228 Ind. 1, 88 N.E.2d 556, 89 N.E.2d 442; Griffiths v. The State (1904), 163 Ind. 555, 72 N.E. 563; Jackson v. State (1958), 238 Ind. 365, 151 N.E.2d 141; Schuble v. State (1948), 226 Ind. 229, 79 N.E.2d 647; Hogan v. State (1956), 235 Ind. 271, 132 N.E.2d 908.” See also Shively v. State (1957), 237 Ind. 17 at 19, 141 N.E.2d 921.

Whether we consider the matter before us in terms of “corpus delicti” or more properly in terms of proof of guilt beyond reasonable doubt, it is clear that the evidence sufficient to establish such proof may be circumstantial. Burton v. State (1973), 260 Ind. 94, 292 N.E.2d 790; Brown v. State (1958), 239 Ind. 184, 154 N.E. 2d 720.

The circumstances surrounding the operation of a motor vehicle may give rise to a conviction for assault and battery with intent to kill. Facts not wholly dissimilar from those here presented resulted in affirmance of a conviction for assault with intent to commit murder in Ester v. State (1964), 214 Tenn. 484, 381 S.W.2d 283. There police officers attempted to stop a vehicle in which defendants were illegal^ transporting whiskey. The officers’ testimony showed that a deliberate attempt was made to run them down. The Tennessee Supreme Court affirmed the conviction relying upon Love v. Bass (1922), 145 Tenn. 522, 238 S.W. 94 which held that an attempt by a “whiskey runner” to run down a sheriff with an automobile was an assault with intent to murder. To the same effect is Sudan v. State (1930), 41 Ga. 828, 155 S.E. 102.

It thus appears that the meagre authority available in other jurisdictions supports conviction for assault and battery with intent to kill even though the intent exemplified by the actor, as here, is indicative of an intent to escape apprehension and arrest rather than a specific intent to actually kill the person or persons obstructing the escape path.

An even stronger case than that before us is Dennard v. State (1914), 14 Ga.App 485, 81 S.E. 378 wherein a conviction of assault with intent to murder was affirmed even though it was not shown that the defendant had any ill-feeling toward the person alleged to have been assaulted, no reason appeared why defendant should have wished to run him down and no apparent explanation for his conduct unless actuated by a reckless disregard of human life. The Georgia Court held that the questions to be determined were solely factual and within the prerogative of the jury. The court said:

“. . . we are not prepared to hold that [the trial judge] committed reversible error in [approving the verdict].”³

We believe a like holding is required here — that the existence of the specific intent to kill on the part of Green was a question of fact for resolution by the trial court sitting without a jury. While we might have concluded otherwise, we cannot state as a matter of law that the trial court’s assessment of the evidence was without reasonable foundation.

For there to have been a criminal offense, the instrumentality causing injury to the police officer here, i.e., the car, must have been put into motion by someone acting with criminal intent. Since the evidence is wholly devoid of any inference that Harris, the driver had any such intent or motivation, the “corpus delicti” insofar as it requires establishment of a criminal act, must incorporate as the initiator of that act, the defendant himself.

Appellant would have us reverse his conviction upon the ground that it was his intent merely to escape from the officers seeking his apprehension and arrest rather than to kill Deputy Sheriff Cambridge. The contention is of no avail to him. Even were we to accept as true that his actual intent was merely to escape, the conviction must be affirmed. Such intent existed when Green entered Harris’ car. Deputy Cambridge standing in front of the car in full view blocked that escape. It was therefore not inappropriate for the trier of fact to reasonably infer that Green intended to eliminate the obstacle to his escape even if that human obstacle was killed in the process.

Green’s in-court testimony concerning his intention to avoid arrest carries with it, in view of the evidentiary circumstances even exclusive of his extra-judicial statement, a permissible inference that such intent was demonstrated by an effort on Green’s part to put the car in motion. Were it otherwise, he would have no reason to give voice to an explanation of his intent.

Judgment affirmed.

Buchanan, P.J., concurs; White, J., dissents with opinion.

1 . It is Cambridge’s reference to this statement by Green which constitutes the focal point of Judge White’s dissent.

2 . Professor Wigmore casts doubt upon the wisdom of the rule even as to confessions:

“The policy of any rule of the sort is questionable. No one doubts that the warning which it conveys is a proper one; but it is a warning which can be given with equal efficacy by counsel or (in a jurisdiction preserving the orthodox function of judges) by the judge in his charge on the facts. Common intelligence and caution, in the jurors’ minds, will sufficiently appreciate it, without a laying on of the road in the shape of a rule of law. Moreover, the danger which it is supposed to guard against is greatly exaggerated in common thought. That danger lies wholly in a false confession of guilt. Such confessions, however, so far as handed down to us in the annals of our courts, have been exceedingly rare (ante, § 867). Such a rule might ordinarily; if not really needed, at least be merely superfluous. But this rule, and all such rules, are today constantly resorted to by unscrupulous counsel as mere verbal formulas with which to entrap the trial judge into an error of words in his charge to the jury. These capabilities of abuse make it often a positive obstruction to the course of justice.” 7 Wig-more § 2070, p. 395.

3 . Compare State v. Richardson (1917), 179 la. 770, 162 N.W. 28, to the contrary wherein defendant was unaware of the presence of the person struck. The Iowa decision, however, turned upon the court’s instructions to the jury and the court held that whether defendant had the actual specific intent was a question of fact for the jury.