Ruetz v. State , 268 Ind. 42 ( 1978 )

Dissenting Opinion

DeBruler, J.

Although I am constrained to agree with the statement of the facts presented by the record as set out in the majority opinion, and with the comments of the majority defining the scope of appellate review of the sufficiency of the evidence to support a conviction, I cannot accept the conclusion of the majority that the evidence presented in this case supports appellant’s conviction. I am unable to distinguish in relevant detail the facts of this case from those in that line of cases holding insufficient to support a conviction evidence which merely establishes a suspicion of guilt. Dunn v. State, (1973) 260 Ind. 142, 293 N.E.2d 32; Manlove v. State, (1968) 250 Ind. 70, 232 N.E.2d 874; Easton v. State, (1967) 248 Ind. 338, 228 N.E.2d 6.

In Dunn the body of a man who had been shot was found in a wooded area. The accused was identified as having robbed and assaulted another man in the same general area, while armed with a rifle. Identification papers of the decedent were found in the immediate vicinity of the latter robbery. We held that this evidence tended to establish “nothing more than a mere suspicion of guilt,” 260 Ind. at 146, 293 N.E.2d at 34, and was therefore insufficient to establish the defendant’s guilt.

In Manlove, also a murder prosecution, the accused and victim left an Indianapolis tavern together on the evening before the victim’s body, with five gunshot wounds, was found in the Indianapolis Water Company Canal. A waitress at the tavern saw a gun on the defendant’s person. Several persons saw a light-colored automobile with two occupants parked in an alley near the tavern on the night of the murder. The victim’s light-blue Ford was found by police in Chicago with spent slugs and bloodstains inside. The defendant was subsequently arrested in Chicago; he admitted traveling there under an alias, and told police that he had lost his pistol.

The Court noted the absence of evidence of the time of death, of ownership by the accused of a pistol of the type of the murder weapon, of any motive for the accused to kill the deceased, and of any substantial link between the defendant and the victim’s automobile. Eight to twelve hours had elapsed between the time the defendant and the victim left the tavern and the discovery of the latter’s body, during which time the trier of fact did not know how long the victim was alive, and how long the victim and defendant were together. The Court held that the defendant’s apparent flight to Chicago created no more than a suspicion of guilt; that the remainder of the evidence established only an opportunity to commit the murder, and that together suspicion and opportunity are insufficient indicators of guilt to sustain a conviction.

This case resembles Manlove in many details. No one ever saw appellant with the decedent or at the latter’s house, nor was there any physical evidence of his presence at the murder scene. Appellant was identified as asking where the decedent could be found, however, shortly before the murder. This evidence, along with appellant’s ownership of a .38 caliber automatic pistol, provides stronger evidence of an opportunity to commit the murder than was present in Manlove, but still presents only an opportunity. Appellant’s actions in discarding the barrel of his pistol in the mountains is no stronger an indication of guilty knowledge than Manlove’s use of an alias and flight to Chicago. It is certainly possible that appellant killed Thomas Schultz. A reasonable juror might suspect that he did. But no reasonable juror could find, with the certainty beyond a reasonable doubt necessary to properly reach a guilty verdict, that appellant committed this murder.

“If mere opportunity or suspicion are sufficient to convict an accused of a felonious homicide . . . then the life and liberty of many innocent people may be summarily sacrificed. The law requires substantial evidence to prove guilty beyond a reasonable doubt. We cannot predicate an affirmance of guilt upon mere possibility because of opportunity or suspicion.” Manlove v. State, 250 Ind. at 83, 232 N.E.3d at 881 (Citations omitted.)

While it is true, as the majority notes, that an appellate determination as to the sufficiency of the evidence is always limited in precedential value to its particular facts, I do not perceive that this Court is, in consequence, relieved of the responsibility to seek consistency in its sufficiency holdings. Unless the Court presently believes that Dunn and Manlove were wrongly decided, I believe we are bound to harmonize our resolution of this appeal with the principles of those cases. I would reverse appellant’s conviction.

Note. — Reported at 373 N.E.2d 152.