Banks v. State

Decision Date16 December 1971
Docket NumberNo. 969S214,969S214
PartiesWilliam BANKS, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Robert J. Fink, Haymaker, Hirsch & Fink, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., for appellee.

PRENTICE, Judge.

Defendant (Appellant) was charged with Murder in the First Degree. His plea was 'self defense.' He was found guilty of manslaughter and sentenced to the Indiana State Prison for not less than two (2) nor more than twenty-one (21) years. The appeal to this Court challenges the sufficiency of the evidence.

The necessary elements of 'self defense' have been most recently set forth by this Court in the case of King v. State (1968), 249 Ind. 699, 234 N.E.2d 465. We quote from that case:

'Where one has taken the life of another human being, and thereafter contends that he did so in self-defense, he can only be successful in his contention if:

(1) he acted without fault,

(2) he was in a place where he had a right to be, and

(3) he was in real danger of death or great bodily harm, or in such apparent danger as caused him in good faith to fear death or great bodily harm.

Bullard v. State (1964), 245 Ind. 190, 195 N.E.2d 856, 197 N.E.2d 295; Hightire v. State (1966), 247 Ind. 164, 213 N.E.2d 707. The burden is upon the State to show that defendant does not meet one or more of these requirements. Dorak v. State (1915), 183 Ind. 622, 109 N.E. 771. Whether the State has borne its burden of showing that the homicidal act was not carried out in self-defense is a question of ultimate fact to be decided by the jury. Robinson v. State (1962), 243 Ind. 192, 184 N.E.2d 16.

After the jury has made this determination in favor of the State and against the defendant, this Court, on appeal:

'* * * has upon it a duty to consider, not to weigh, the evidence in the case for the purpose of determining whether there is any substantial evidence of probative value from which a jury reasonably could have inferred that the appellant was guilty of the offense charged' Robinson v. State, supra, 243 Ind. at 197, 184 N.E.2d at 18. See also Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6; Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641.' 249 Ind. at 705, 234 N.E.2d at 468.

This Court has often held that a guilty verdict will not be disturbed upon a claim of insufficiency of the evidence unless there is a total lack of some evidence of an essential element of the crime; and where the issue of the sufficiency of the evidence is raised on appeal, this Court has repeatedly stated that it will consider only the evidence most favorable to the State with all reasonable inferences which may be drawn therefrom. Grimm v. State (1970), Ind., 258 N.E.2d 407.

Considering only the evidence most favorable to the State and all reasonable inferences to be drawn therefrom, we find the following circumstances. At approximately 1:00 a.m. on August 24, 1968, the defendant and the decedent met on the street while walking in opposite directions. The decedent was alone, and the defendant was in the company of Jack Wines. A fight ensued between Defendant and decedent, as a result of which decedent died of stab wounds inflicted by the defendant. A portion of the fight was witnessed by Brent Threlkeld from a distance of approximately thirty feet, as well as by Jack Wines. Ralph Smith also witnessed a portion of the fight from a distance of one hundred to one hundred and fifty feet, but his testimony had no probative value and will not be here related. Both Threlkeld and Wines appeared as witnesses for the State.

Mr. Threlkeld testified that when he first saw the defendant and the decedent they were 'squared off' facing each other and decedent hit Defendant with a stick (later identified as a board approximately three-quarters of an inch thick by three inches wide by three feet long). The blow struck Defendant about the left part of the shoulder or the left part of the head. A scuffle followed, during which the decedent was continually hitting the defendant with the board. Ultimately, decedent fell backwards onto the ground, the stick flew out of his hand, and he put his hands in the air and said something to the effect of 'no, I give,' or 'I quit.' Instantly thereafter, if not simultaneously, Defendant stabbed the decedent in the stomach. Decedent rolled over and Defendant stabbed him in the back. Defendant and his companion walked away. The entire melee lasted about two minutes. The defendant was just standing there when the decedent first struck him with the board. Thereafter Defendant was waving his hands around, but he could not tell whether the defendant was trying to get away, ward off blows or to hit the decedent.

Mr. Wines testified that he and the defendant had been drinking together that evening but that neither was drunk. They were walking to the hotel where they both lived and met the decedent walking in the opposite direction. As they passed each other, the decedent said something to the defendant. He did not know what was said, but Defendant turned and went back while the witness walked a few steps ahead, and the next thing he knew the defendant and the decedent were fighting. Decedent was swinging a 'club' and Defendant had a knife. The witness got between the defendant and the decedent in an attempt to stop the fight. The defendant stopped momentarily, but the decedent would not. Decedent told the witness to get out of the way or he would get hurt and swung at him with the board. The decedent was swinging the board with both hands and never stopped. The parties were in close together and both moving. The witness could not say how many times the defendant cut the decedent, and when the fight was over the defendant's head and eye were mangled and he was bleeding badly.

Testimony of Dr. Benz, pathologist and deputy coroner, testifying for the State, together with a photograph of the decedent introduced into evidence by the State, disclosed that the decedent was thirty-three years old, six feet one inches tall, weighed approximately 180 to 185 pounds and was of a muscular physique.

Uncontroverted defense evidence, none of which is inconsistent with any evidence offered by the State, reveals that the defendant was sixty-two years old and an ex-convict on parole, that he had a long police record and several convictions, none of which involved violence, that in the fight between him and the decedent he received a severe laceration of the cornea and a mashed iris, both of the left eye, a fractured fifth metacarpal of the right hand and a perforated eardrum. His injuries required fifteen days of hospitalization and subsequent medical outpatient care and left him with 20/200 vision of the right eye and a permanently impaired hand.

Defendant's uncorroborated testimony was to the effect that when he and Mr. Wines met and passed the decedent, the decedent called to him and that he went back a few steps, whereupon the decedent demanded his money and that of Mr. Wines under threat of being shot. There was an unidentified man and woman in a car parked nearby, and in view of their presence Defendant told decedent that he was crazy and that he would not give him a nickel and turned and walked a few steps towards Mr. Wines. At this moment the decedent called to him again and he went back, whereupon decedent apologized for his previous conduct and told Defendant that he did not have a gun. But having thusly put the defendant off guard, the decedent struck the first blow with his fist and then commenced to beat him with a club. Mr. Wines came between them momentarily and tried to stop the fight but the decedent then attacked Mr. Banks. Defendant did not want to fight. Realizing that his parole was in jeopardy, he only wanted to get away; but decedent had overpowered him, and there was no way for him to escape. Following the fight, he returned to his hotel and threw the knife away.

'Our case law in Indiana recognizes the right of every citizen to reasonably defend himself against unwarranted attack. Therefore self-defense in homicide and assault cases must remain a viable rule and when such defense is asserted and supported by the evidence it may not be casually thrust aside by the jury. Hence the burden was upon the State to negate the element of self-defense by substantial evidence of probative value.' Johnson v. State (1971), Ind., 271 N.E.2d 123, 124--125, and cases cited.

In cases involving an assault and battery, when elements of the offense charged are proved, there usually will be direct proof or probative inferences eliminating one or more of the elements of a successful self-defense plea. Although of a negative character, the...

To continue reading

Request your trial
36 cases
  • Nuss v. State, 1--874A123
    • United States
    • Indiana Appellate Court
    • June 5, 1975
    ...justifiable' language has been repeatedly used by the Indiana Supreme Court in defining the doctrine of self defense. Banks v. State (1971), 257 Ind. 530, 276 N.E.2d 155; Bange v. State (1958), 237 Ind. 422, 146 N.E.2d 811; Flick v. State (1935), 207 Ind. 473, 193 N.E. 603; Myers v. State (......
  • Bradley v. State, 2--572A3
    • United States
    • Indiana Appellate Court
    • October 10, 1972
    ...to determine what weight and value should be placed upon such evidence. State v. Torphy (1940), 217 Ind. 383, 28 N.E.2d 70; Banks v. State (Ind.1971), 276 N.E.2d 155. Furthermore, flight alone is insufficient to sustain a conviction; it must be combined with other evidence which establishes......
  • Garner v. State, 2--174A3
    • United States
    • Indiana Appellate Court
    • April 10, 1975
    ... ...         Meredith v. State (1965), 247 Ind. 233, 236, 214 N.E.2d 385, 386 ...         See also, McMinoway v. State (1972), Ind.App., 283 N.E.2d 553; Banks ... ...
  • Shutt v. State
    • United States
    • Indiana Supreme Court
    • October 21, 1977
    ...one of the factors necessary to justify killing in self defense is the bona fide fear of death or great bodily harm. Banks v. State (1971), 257 Ind. 530, 276 N.E.2d 155. But, whether or not there was such a state of mind must be found objectively in the light of the surrounding circumstance......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT