Bange v. State, 29551

• Decision Date: 09 January 1958
• Docket Number: No. 29551,29551
• Citation: 146 N.E.2d 811,237 Ind. 422
• Parties: Isaac BANGE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 811

146 N.E.2d 811

237 Ind. 422

Isaac BANGE, Appellant, v. STATE of Indiana, Appellee.

No. 29551.

Supreme Court of Indiana.

Jan. 9, 1958.

Grafton J. Kivett, Gilbert W. Butler, Martinsville, Albert W. Ewbank, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Deputy Atty. Gen., for appellee.

PER CURIAM.

Appellant was charged by indictment with the crime of first degree murder under Acts 1941, ch. 148, § 1, p. 447, being § 10-3401, Burns' 1956 Replacement, tried by jury, found guilty of murder in the second degree, and sentenced accordingly.

Errors assigned here are the overruling of appellant's motion for a new trial, and the overruling of his motion for a directed verdict, both at the close of the State's evidence and at the close of all of the evidence.

First: Appellant asserts that the evidence is not sufficient to sustain the verdict of the jury because 'the evidence shows conclusively and without any contradiction that the appellant shot his son-in-law, Gene Richardson, in self defense.'

The rule governing the definition of self-defense in Indiana is concisely stated in Myers v. State, 1922, 192 Ind. 592, 594, 595, 137 N.E. 547, 548, 24 A.L.R. 1196, as follows:

'In this state, the law of self-defense, as deduced from modern authorities, is: 'That, when a person, being without fault, and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable.' ' Ewbanks Ind. Criminal Law, Symmes Ed., Vol. 2, § 1395, p. 764.

Whether or not appellant herein shot and killed the deceased in self-defense was an ultimate fact solely for the determination of the jury from the evidence in this case. Landreth v. State, 1930, 201 Ind. 691, 697, 171 N.E. 192, 72 A.L.R. 891; Ellis v. State, 1899, 152 Ind. 326, 330, 52 N.E. 82; Buffkin v. State, 1914, 182 Ind. 204, 207, 106 N.E. 362; King v. State, 1918, 187 Ind. 220, 221, 118 N.E. 809; Myles v. State, 1955, 234 Ind. 129, 124 N.E.2d 205, 207, certiorari denied, 1955, 349 U.S. 932, 75 S.Ct. 776, 99 L.Ed. 1262.

The further rule applicable here is stated in Myers v. State, supra, 1922, 192 Ind. 592, at page 594, 137 N.E. 547, at page 548, 24 A.L.R. 1196, as follows:

'* * * surroundings bearing upon the necessity or apparent necessity, as well as the amount of force necessary to employ to resist an attack, can only be determined from the standpoint of the appellant at the time and under all the existing circumstances, and were all proper matters for the jury alone to consider and weigh in determining whether or not she committed the homicide in the reasonable exercise of the right of self-defense, and its conclusion thereon the record before us will not allow us to disturb.'

It was the burden of the State to overcome the defense of self-defense by proving the commission of the crime charged beyond a reasonable doubt.

We cannot agree with appellant that the evidence on the question of self-defense is 'conclusive' and 'without any contradiction.'

This assertion is grounded upon an alleged exculpatory statement given by appellant to the sheriff at the time of his arrest, and introduced in evidence by the State, pertinent parts of which are as follows:

'Q. What happened when you arrived at 789 S. Crawford? A. When I arrived at 789 S. Crawford they were in a ruckus. He was tearing up the furniture and tearing the rugs up off the floor. He said he was going to move them out of there tonight, meaning the furniture. I told him to leave the rugs down and I would pay him for what he had in them and finish paying Powell for what he owed him. Then he chased Geraldine out of the house barefooted and said he was going to kill her and that is the last I saw of Geraldine and I was still in the house.

'Q. How soon did you follow Gene and Geraldine out of the house? A. It was just a few seconds. He changed his course and went for his car, and I knew he had a gun in there some place and I could see by the color of his shirt that he turned around and came towards me and I thought he had a gun in his hand. He had something and I didn't know what it was. Then I stepped back towards my car.

'Q. Where was your car parked in regards to his car? A. I imagine about 15 feet from Gene's car and my car was headed East.

'Q. In what direction was Gene's car headed? A. He was parked with his car headed North in front of the house. When I reached in the car and got my gun, I picked up a couple of shells that were laying loose in the back seat. I then inserted one of them in the gun and beat him to the draw, firing two shots from my hip.

'Q. What type of gun did you have in your hands? A. Single barrel 16 ga. shotgun.

'Q. Whose gun is this? A. It is mine.

'Q. When you went to the car you reached in and got your shotgun and two shells? A. Yes.

'Q. In your own words what happened then? A. I inserted one of the shells in the gun, I fired the first shot from the hip and then reloaded and fired the second shot from the hip.

'Q. After you fired the first shot did you notice any blood on Gene? A. I couldn't see.

'Q. Did you at any time see any gun shot wound on Gene? A. Just before I started to leave.

'Q. Where was this gun shot wound? A. It looked like it was on the left hand side or right hand side I meant to say around the shoulder someplace.'

Without deciding whether the foregoing is an exculpatory statement, it is sufficient to say that even if it was, the State is not compelled to introduce direct and affirmative evidence to rebut it. If 'its falsity appears to the satisfaction of the jury beyond a reasonable doubt, from any or all the facts' in evidence, it is sufficient. Pollard v. State, 1950, 229 Ind. 62, 68, 94 N.E.2d 912. The jury was not compelled to believe appellant's statement, even though it was introduced by the State as proof of the commission of the crime charged.

In examining the evidence in the record most favorable to the State, to determine whether there is sufficient evidence to support the verdict of the jury, we find that appellant testified as a witness in his own behalf, in part, that on the evening before the fatal shooting he had interceded in a quarrel between the deceased and his wife (appellant's daughter) and deceased said that he would 'shoot' appellant if he came back to 789 Crawford Street where deceased lived; that at the request of his daughter appellant returned to the home of the deceased about 7:35 P. M. on September 28 and when he arrived there was a 'ruckus going on'; that deceased told appellant that he had no business there and after further quarreling appellant's daughter ran out the door with deceased in pursuit; appellant followed them out a few seconds later to see if he could find Geralding (his daughter); and that when deceased saw appellant coming out of the house 'he [the deceased] changed his course and went to the car' and opened the car door and reached inside. Appellant then testified that 'I imagined it was his gun, he had a gun in there.' Appellant further testified that he had a single barrel 16 gauge shotgun in his car and when he saw deceased reach into his car, he reached into the back of his own for his shotgun. At this point appellant testified as follows:

'Q. Tell what you did next? A. Well, I got the gun out and I fumbled around and got a couple of shells out and I inserted one and he was coming at me and I fired along at my hip some place.

'Q. Where were you standing at that time? A. I was standing a little back of the tree on the South side of the house.

'Q. Standing between the house and the tree perhaps? A. On the West side of the tree a little bit.

'Q. Which direction had you started from the house after you got the gun? A. Well, I was turning around from the door where I got the gun and I seen him coming, I was facing where he was, he was coming facing me and stooped over in a stooped position.

'Q. Did you fire at him at that time? A. I did.

'Q. Describe the movements of the gun, what you did, tell what you did? A. Well, I fired that time and then I re-loaded as far as I can remember----

'Q. Where did you have the shells? A. In my hand.

'Q. Did you hold the shell in your hand at the same time you shot? A. Yes.

'Q. Do you know whether you struck Mr. Richardson the first time or not? A. No, I don't believe I did.

* * *

* * *

'Q. Do you recall whether he was within the space of this light at the time you shot? A. No, he was not, he was North of that light.

'Q. Did you have an opportunity to leave the premises at that time? A.

Well, I did, I went and looked--I looked to see.'

Appellant, at the time he got his shotgun out of his car, testified as follows:

'Q. At this time what was the state of your mind, do you recall anything of the past? A. Well, a lot of things crossed my mind, the things he had done to me and the way I had been treated and the way they had cost me a lot of money and stuff like that and what it cost me and not to have any peace of mind.'

In answer to questions by the sheriff, as shown by appellant's statement admitted into evidence, without objection, as State's Exhibit No. 9, appellant stated that when he went to the car he reached in and got his shotgun and two shells; that he inserted one of the shells in the gun and 'fired the first shot from the hip and then reloaded and fired the second shot from the hip.'

A neighbor who lived 183 feet from the scene of the shooting testified, as a witness for the State, that on the evening of September 28, 1956, between 7:30 and eight o'clock P. M. she was sitting in her living room listening to the television when she heard a 'commotion down at the Richardson home' and she went out her back door to 'see what was happening'; that she heard no noise when she first went outside, then she heard a shot coming from the direction of the Richardson house; and that after the shot she...