The opinion
DISSENTING OPINION
Gilkison, J.
I concur fully with the dissenting opinion of Emmert, J., filed in this case.
The appellant was charged with, and convicted of murder in the first degree. Our statute so far as applicable to the charge in this case is as follows:
“Whoever purposely and with premeditated malice, . . . kills any human being, is guilty of murder in the first degree, . . .” Burns’ 1942 Replacement, § 10-3401.
I shall consider only whether there is any evidence in the record or any proper inference showing (1) that the killing was purposely done or (2) done with premeditated malice.
Of course, the burden of proving the charge was upon the state, and no part of this burden could shift from the state to the defendant at any time.
Biggs
v.
State
(1929), 201 Ind. 200, 205 , 167 N. E. 129 ;
Fehlman
v.
State
(1928), 199 Ind. 746, 755 , 161 N. E. 8 .
Our law provides that “a defendant is presumed to be innocent
until the contrary is proved.”
(My italics.) Section 9-1806, Burns’ 1942 Replacement. This is a very strong presumption, and our court has universally held that it continues throughout the trial, and that the jury should weigh the evidence in the light of, and endeavor to reconcile the evidence with, this presumption.
Sims
v.
State
(1931), 197 Ind. 311, 321 , 147 N. E. 520 ;
Saraceno
v.
State
(1931), 202 Ind. 663, 667 , 177 N. E. 436 ;
Farley
v.
State
(1890), 127 Ind. 419 , 26 N. E. 898 .
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I recognize fully the difference in the rule applicable in the trial court during the trial and in the consideration of the motion for new trial, and that applicable in this court on appeal. This difference is correctly explained with many supporting authorities in
Luttrell
v.
State
(1932), 204 Ind. 116, 119 , 183 N. E. 318 . These rules properly applied and exercised are salutary and helpful both to the trial court in the trial and to the Appellate or Supreme Court on appeal, in the performance of their respective duties, which are always to do justice to litigants; for,
“To do justice is an ever persistent rule to which all others must yield.” Farmers’ Bank and Trust Co., Receiver
v.
Brown et al.
(1933), 249 Ky. 820 , 61 S. W. 2d 628, 629 , 91 A. L. R. 323, 325, 326;
McCague
v.
New York C. & St. L. R. Co.
(1947), 225 Ind. 83, 92 , 71 N. E. 2d 569, 573, 574 . If there is a failure to apply the applicable rule in either court, or if the applicable rule is applied to excess in either court and as a result justice is not done, there is reversible error. I think the record in this case conclusively shows that the trial court failed to apply the rule that should have governed it, and that the majority opinion of this court applies the rule governing it to excess and as a result justice not only has not been done, but has been denied.
On appeal there is a presumption of correct action in the trial court, but this presumption prevails only
“until overcome by a showing of no evidence to prove some material fact
or for some other cause it affirmatively appears that the defendant was prevented from having a fair trial.” (My italics.)
Luttrell
v.
State supra,
p. 119. On appeal by defendant this court will consider only the evidence most favorable to the state with
proper
inferences to be drawn therefrom. It will not consider evidence which merely contradicts the evidence
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of the state. In this dissent I shall be bound by these rules.
I recognize fully the right and duty of the trial jury and trial court to draw
proper
inferences from the evidence produced in the trial. But in every instance in which the courts have discussed the above rule, they have said such inferences must be
proper
and reasonable inferences, and such as reasonably and naturally flow from the evidence. 20 Am. Jur., Evidence, § 158, pp. 161, 162;
Russell
v.
Scharfe
(1921), 76 Ind. App. 191, 197 , 130 N. E. 437 . If unreasonable and unnatural inferences must be indulged to support the finding and judgment rendered below, then that finding and judgment is erroneous. If there is no evidence whatever upon which to base the inferences drawn, the finding and judgment is likewise erroneous, because it is a mere speculation or guess.
Hudson
v.
State
(1926), 198 Ind. 422, 426 , 154 N. E. 7 ;
United States
v.
Ross
(1876), 92 U. S. 281, 283 , 23 L. Ed. 707, 708 . When a fact is clearly established by undisputed evidence there is then no room for an inference that such fact does not exist.
N. Y. Central R. R. Co.
v.
Green, Admx.
(1938), 105 Ind. App. 488, 496, 497 , 15 N. E. 2d 748 .
(1) The burden is upon the state in this case to show by the evidence that appellant purposely or intentionally shot and killed his wife. Neither the trial jury nor trial court can infer or presume this fact without some evidence upon which to base the inference or presumption.
Minardo
v.
State
(1932), 204 Ind. 422, 427 , 183 N. E. 548 , and cases cited.
Kilgore
v.
Gannon
(1916), 185 Ind. 682, 684 , et seq., 114 N. E. 446 , and authorities cited.
Welty
v.
State
(1912), 180 Ind. 411, 422 , et seq., 110 N. E. 73 , and cases cited;
N. Y. Central R. R. Co.
v.
Green, Admx., supra,
pp. 496, 497;
The Cleveland
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etc. R. W. Co.
v.
Miller, Admr.
(1898), 149 Ind. 490, 507, 508 , 49 N. E. 445 .
“Mere surmises, guesses, or conjectures of the jury can lend no support to their verdicts. In
Babcock
v.
Fitchburg R. R. Co.,
140 N. Y. 308 , it is said: ‘Verdicts must stand upon evidence and not upon mere conjecture, however plausible, and if the situation be such that the plaintiff cannot furnish the evidence the misfortune is his.”
The Cleveland Etc. Ry. Co.
v.
Miller, Admr., supra,
p. 508.
Since appellant’s sole and only defense in the trial court and on appeal was and is that the shooting was wholly accidental, it becomes absolutely necessary that we examine the record carefully to ascertain whether there is any evidence of a purposeful and intentional shooting by appellant. This requires that I supply from the record, evidence omitted in the majority opinion.
To prove this essential fact the state placed appellant’s brother, Charles, on the witness- stand, thereby certifying to his veracity. On this subject he testified for the state in substance as follows:
We got to Kenneth’s house that evening about 6:30. When we went in the house Kenneth put his arms around Mabel and said: “Charlie, this is the best gal in the world.” Kenneth asked her to get him a change of clothes—he had spilled some water on himself while eating dinner at the Brown Derby. She said “all right” and they went to their bedroom. A little later he heard appellant say: “Mabel, watch that, gun its loaded.” Then he heard a shot. Immediately after the shot Kenneth said: “Charlie call the doctor.” Then he said, “Oh Mabel,” and started to cry.
This was the state’s sole evidence to establish that appellant purposely and intentionally killed his wife.
But of course the state is entitled to have the advantage of anything appellant may have proved on this sub
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j ect. The only proof appellant offered on this proposition was his own evidence. Since his evidence in no way refutes the evidence of the state, but is wholly corroborative thereof, and is more complete, because of his better position, for seeing and hearing all that occurred at the time of the tragedy, I shall give its substance. It is as follows:
When I went in the house that evening I said: “Mabel, get me some dry clothes. I’m all wet.” She said “Okey.” I put my arms around her and said: “Charlie this is the sweetest little girl in the world.” We went in the bedroom and she was getting me some dry clothes. She said: “You’d better stay in and get rid of that cold.” I said I had to take Charles home, and she said: “We’ll both go.” We then talked about our daughter Susan dancing at school. She got up and picked up the sweater I took off, and hung it in the clothes closet. She came to the dresser and put her elbow on it and I was buttoning up my underclothes and putting on my trunks, and she nearly knocked the pistol off the dresser, then she picked it up and started around •toward the chifforobe and I said “Watch out, Mabel, that gun is loaded.” She said: “Here take it,” “And I grabbed for it and it went off, and how it did, Judge, I don’t know.” Then I saw Charles and told him to call a doctor. When I saw she was shot I tried to put her in the bed, but I couldn’t hold her, so I put her down on the floor.
The foregoing was all the evidence in the case from any source whatever as to appellant’s purpose and intent in the shooting.
Appellant’s brother as a witness for the state testified that he and appellant each had drunk two bottles of beer in the afternoon, and a short beer and a bottle of beer each with their steak dinner. There was no other proof of drinking by appellant. After the shooting the evidence indicates that appellant was suffering torture
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from distractive grief, saying frequently “Why did I do it. Why did I do it,” and similar expressions.
With this the only evidence on the proposition of purpose and intention before us it seems to me that no inference that appellant purposely and intentionally shot his wife can possibly be indulged, and therefore the action of the jury and trial court is arbitrary and capricious. Such an inference, in the face of this evidence, is surely too violently erroneous to merit the approval of this court. An inference cannot be said to be reasonable when it can be drawn only by a capricious disregard of apparent truthful testimony that is in itself probable and is not at variance with other proven or admitted facts.
Pioneer Coal Co.
v.
Hardesty
(1921), 77 Ind. App. 205, 208 , 133 N. E. 398 ;
Russell
v.
Sharfe, supra.
On the contrary the evidence produced by the state, and considering only that most favorable to the state, conclusively establishes that the occurrence was an unfortunate and most distracting accident. The law books are profuse with definitions of the word “accident.” I selected as an apt, typical and correct definition the following :
“The word may be employed as denoting a calamity, casualty, catastrophe, disaster, an undesirable or unfortunate happening; an unexpected personal injury resulting from an unlooked for mishap or occurrence; any unpleasant or unfortunate occurrence that causes injury, loss, suffering or death; some untoward occurrence aside from the usual course of events.”
1 C. J. S., Accident, p. 427 to 431. Black’s Law Dictionary, 3rd Ed., p.
23; The Wabash, St. Louis and Pacific Railway Co.
v.
Locke, Administrator
(1887), 112 Ind. 404, 411 , 14 N. E. 391 .
Our Appellate Court has accepted the above definí
*309
tions in substance in determining whether an alleged injury was cognizable under the Indiana Employers Liability Act, or was an accident cognizable only under the Indiana Workmen’s Compensation Law. Judge Wood of that court after giving a definition of the word “accident” “as an unlooked for mishap, an untoward event, which is not expected or designed,” as “repeatedly defined” by that court, then quoted with approval from
Western Commercial Traveler's Association
v.
Smith
(1898), 85 Fed. 401 , 40 L. R. A. 653, “as to the meaning of accidental means” as follows:
“ ‘An effect which is not the natural or probable consequence of the means which produced it,
an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to prod'ioce and which he cannot be charged with the design of producing under the maxim to which we have adverted, is produced by accidental means.
It was produced by means which were neither designed nor calculated to cause it. Such an effect is not the result of design, cannot be reasonably anticipated, is unexpected, and is produced by an unusual combination of fortuitous circumstances; in other words, it is produced by accidental means.’ ” (My italics.)
General Printing Corp.
v.
Umback, Admx.
(1935), 100 Ind. App. 285, 292 , 195 N. E. 281 .
This quotation was also used with approval by Nichols, J., in
General etc. Tank Car. Corp.
v.
Weirick
(1921), 77 Ind. App. 242, 245 , 133 N. E. 391 .
If we should indulge the inference that the defendant was under the influence of intoxicants, and that because of that fact he was- awkard, his reflexes irregular and unsteady, and that this caused the negligent firing of the gun that killed his wife, (which is the strongest possible inference against appellant permitted by the
*310
evidence), he would still not be guilty of any crime under our law. This court in a case that has facts strikingly similar to this case, has recently held that a death caused by a negligent but unintentional act of another is not a crime and is not murder, speaking by Fansler, J., as follows:
“The daw’ never presumes murder upon any state of facts. ... If the death of a person is caused by the negligent but unintentional act of another, it is not excusable or justified. It is a wrong, a tort,
but it is not a, crime and it is not murder. . .
.”(My italics.)
Miller
v.
State
(1944), 223 Ind. 50, 56 , 58 N. E. 2d 114 .
On appeal this court will not allow actionable negligence to be presumed to support a verdict and judgment for money damages rendered in a civil case, where an injury results to an innocent person from the happening of the event, the cause of which is not specifically proven.
National Biscuit Co.
v.
Wilson
(1907), 169 Ind. 442, 446, 447 , 82 N. E. 916 , and the many authorities there cited. In such a situation the rule
res ipsa loquiter
is not allowed to support an inference of negligence. Since this is true in a civil case for the collection of money damages from a defendant, what reason can be given for the allowance of such an inference to support a verdict and judgment in a case of murder in the first degree, in lieu and instead of evidence of intentional and purposeful killing, in a similar situation, where not money, but the liberty for life of a defendant is involved ?
It seems to be the universal rule of evidence, that the facts, upon which an inference may be based, should be established “by direct evidence, as if such facts were the very facts in issue.”
Hudson
v.
State, supra; United States
v.
Ross, supra; Globe Accident Ins. Co.
v.
Gerisch
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(1896), 163 Ill. 625 , 54 Am. St. 486, 489. In
United States
v.
Ross, supra,
at pages 283, 284 U. S., page 708 L. Ed., Mr. Justice Strong, in language which we must approve, said:
“No inference of fact or law is reliable, drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved,
and not themselves presumed.”
(My italics.)
Since there is no evidence in the record whatever from which the jury or the trial court could have properly drawn an inference that appellant purposely fired the weapon that killed his wife, the verdict and judgment are contrary to law, and the cause should be reversed.
(2) Another proposition I wish to present is this: Is there any evidence that at the time the weapon was fired or at any time, appellant entertained premeditated malice toward his wife? I have noted evidence in discussing the proposition of “purposeful killing” that properly may be considered on the subject of “premeditated malice.” There is other evidence noted in the dissenting opinion of Emmert, J., that should be considered on this proposition. It may be firmly asserted from the evidence without fear of any contradiction that throughout their married life appellant and his wife sustained a very happy marital relation. The evidence conclusively—without a single discordant note—proves that each had for the other an abiding respect and love, and that on the part of appellant this continued to, and continues after the wife’s death.
I am fully aware of the trite rule that malice may be inferred from the
intentional
or
purposeful
use of a deadly weapon in such a manner as likely to produce death. But in this case there is an entire absence of
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evidence of any
intentional
or
purposeful
use of the lethal weapon. The record affirmatively shows that the trial jury and trial court inferred or presumed the
intentional
use of the deadly weapon contrary to all the evidence in the case and without a solitary fact or circumstance upon which to base such inference or presumption. This was an arbitrary capricious and unwarranted inference. The majority opinion takes umbrage behind the presumption of correct action in the trial court, without considering the effective part of the rule, that this presumption “prevails only until overcome by a showing of no evidence to prove a material fact. . . .”
Luttrell
v.
State, supra,
p. 119. This is an arbitrary and capricious presumption.
Of course, an essential element in the proof of an offense, may not be proved by an inference which is founded wholly upon another inference that is, itself, a mere conjecture or guess.
Smith
v.
State
(1928), 200 Ind. 411, 414 , 164 N. E. 268 ;
Fehlman
v.
State, supra; Johnson
v.
State
(1927), 199 Ind. 73, 77 , 155 N. E. 196 ;
Hudson
v.
State, supra; Titzer
v.
State
(1930), 201 Ind. 643, 648, 649 , 171 N. E. 7 ;
Young
v.
Montgomery
(1903), 161 Ind. 68, 69, 70 , 67 N. E. 684 ;
Pittsburgh, etc. R. Co.
v.
Vance
(1915), 58 Ind. App. 1, 6 , 108 N. E. 158 ;
Orey
v.
Mutual Life Insurance Co.
(1938), 215 Ind. 305, 309 , 19 N. E. 2d 547 ;
United States
v.
Ross, supra.
And even if a presumption may sometimes exist, it “becomes of no avail as evidence to be considered by the court or jury, as soon as evidence is introduced in opposition.”
Kilgore
v.
Gannon, supra; Welty
v.
State, supra; Lincoln
v.
French
(1882), 105 U. S. 614 , 26 L. Ed. 1189, 1190 .
“When all the facts attendant upon the killing are before the jury, there is no room for a presumption of malice, and malice must be proved be
*313
yond a reasonable doubt without presumptions to aid it, the same as with respect to other material questions in order to constitute the degree of crime of which one is convicted.”
Welty
v.
State, supra,
page 421, 422 et seq. and cases cited.
The court quoted with approval from
Hawthorne
v.
State (1881),
58 Miss. 778 , on 787, as follows:
“. . . If the attendant circumstances are shown in evidence, whether on the part of the State or the accused, the character of the killing is to be determined by considering them, and it is then not a matter for presumption,
which operates in the absence of explanatory evidence,
but for determination from the circumstances shown in evidence. . . (My italics.)
Since there is no evidence in the record from which any inference of premeditated malice upon the part of appellant could lawfully be inferred, and any presumption of such malice to support the verdict and judgment, is completely overcome by the evidence, the judgment is contrary to law, and it should be reversed.