Sparks v. State of Indiana, 245 Ind. 245

Arterburn, J. — This is a prosecution by the State of Indiana against the appellant, Donald Hurcle Sparks, for the alleged offense of murder in the first degree. He pleaded not guilty and after a trial by the court, was found guilty of murder in the second degree. The main contention here is that the State failed to prove the appellant guilty of malice as a necessary element of the offense of which the appellant was found guilty. For that purpose, we must review the evidence, guided by the principle that on appeal we may consider only the evidence most favorable to the support of the trial court’s judgment.

Tait v. State (1963), 244 Ind. 35, 188 N. E. 2d 537; Myles v. State (1955), 234 Ind. 129, 124 N. E. 2d 205. The evidence shows that the appellant was seventeen years of age on October 8, 1962, the day of the alleged killing; that the victim was Brenda Dawn Fredericks, age three years and four months. Brenda’s father and mother both worked during the day and they employed the father’s half-brother, the appellant, to care for their three children, including Brenda. The Fredericks, on the day in question, left for work around six and seven o’clock, leaving the appellant with their three children.

The two oldest children left for school about eight o’clock. After the two children had left, appellant found Brenda at a neighbor’s home, spanked her and sent her back home. Shortly thereafter, a boy playmate age four, came to the Fredericks home to play with Brenda. The evidence reveals that the appellant was engaged in reading a sex-stimulating book known as “Too Many Beds”. The appellant admits that he was stimulated sexually at the time as the result of this reading. He shared a carbonated drink with the children in the kitchen and then he and Brenda danced together.

He says he was stimulated sexually in this activity and that he made a remark to the little girl about touching her privates. She told him that she would tell his father and he argued with her about it. The evidence then is that some remarks were made about a gun that was in a drawer in the home and that either Brenda or the appellant got the gun. The appellant had recently cleaned and reloaded the pistol. Appellant says that he “ . . . still thinking about her telling his father ... ”, drew the gun on her to scare her so she wouldn’t tell his father.

He said he became angry when he couldn’t influence the girl with reference to telling his father, and thát he squeezed' the trigger, thus shooting and killing her. Second degree murder is defined as follows: “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.” Acts 1905, Ch. 169, §350, p. 584, being Burns’ §10-3404, 1956 Repl. Malice is shown by the use of a deadly weapon. Barker v. State (1958), 238 Ind. 271, 150 N. E. 2d 680.

It has been said a number of times that the use of a deadly weapon against an unarmed person substantiates the essential elements of malice. Yarber v. State (1962), 242 Ind. 616, 179 N. E. 2d 882; Dobbs v. State (1957), 237 Ind. 119, 143 N. E. 2d 99; Warren v. State (1963), 243 Ind. 508. 188 N. E. 2d 108. The evidence here is sufficient ior tne jury to conclude that malice existed as well as a motive for the shuoting in this ease. The law presumes that a person intends the natural, necessary consequences of his act. Pitts v. State (1939), 216 Ind. 168, 23 N. E. 2d 673. The judgment of the trial court is affirmed.

Landis, C. J. and Achor, J., concur. Jackson, J., dissents with opinion. Myers, J., dissents with opinion.