Banks v. State, No. 969S214

Docket NºNo. 969S214
Citation257 Ind. 530, 276 N.E.2d 155
Case DateDecember 16, 1971
CourtSupreme Court of Indiana

Page 155

276 N.E.2d 155
257 Ind. 530
William BANKS, Appellant,
v.
STATE of Indiana, Appellee.
No. 969S214.
Supreme Court of Indiana.
Dec. 16, 1971.
Rehearing Denied Feb. 21, 1972.

[257 Ind. 532]

Page 156

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

[257 Ind. 533] (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

Page 157

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 [257 Ind. 534] 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 [257 Ind. 535] 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...

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36 practice notes
  • Nuss v. State, No. 1--874A123
    • United States
    • Indiana Court of Appeals of Indiana
    • June 5, 1975
    ...to uphold the verdict of the jury and that Nuss should [164 Ind.App. 401] be discharged under the holding of Banks v. State (1971), 257 Ind. 530, 276 N.E.2d Page 751 155. Nuss points out that the defendant in Banks was discharged by our Supreme Court for the reason there was nothing in the ......
  • Shutt v. State, No. 1076S358
    • United States
    • Indiana Supreme Court of Indiana
    • October 21, 1977
    ...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 circumstances, a......
  • Bradley v. State, No. 2--572A3
    • United States
    • Indiana Court of Appeals of Indiana
    • October 10, 1972
    ...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 beyond a rea......
  • Woods v. State, No. 2--1173A250
    • United States
    • Indiana Court of Appeals of Indiana
    • December 9, 1974
    ...Ind.App. 319] being struck and knocked to the ground, he shot and killed Coleman in self-defense. Woods relies upon Banks v. State (1971), 257 Ind. 530, 276 N.E.2d 155 in which a voluntary manslaughter conviction was reversed. In that case, as in subsequent decisions of this court, (e.g., W......
  • Request a trial to view additional results
36 cases
  • Nuss v. State, No. 1--874A123
    • United States
    • Indiana Court of Appeals of Indiana
    • June 5, 1975
    ...to uphold the verdict of the jury and that Nuss should [164 Ind.App. 401] be discharged under the holding of Banks v. State (1971), 257 Ind. 530, 276 N.E.2d Page 751 155. Nuss points out that the defendant in Banks was discharged by our Supreme Court for the reason there was nothing in the ......
  • Shutt v. State, No. 1076S358
    • United States
    • Indiana Supreme Court of Indiana
    • October 21, 1977
    ...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 circumstances, a......
  • Bradley v. State, No. 2--572A3
    • United States
    • Indiana Court of Appeals of Indiana
    • October 10, 1972
    ...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 beyond a rea......
  • Woods v. State, No. 2--1173A250
    • United States
    • Indiana Court of Appeals of Indiana
    • December 9, 1974
    ...Ind.App. 319] being struck and knocked to the ground, he shot and killed Coleman in self-defense. Woods relies upon Banks v. State (1971), 257 Ind. 530, 276 N.E.2d 155 in which a voluntary manslaughter conviction was reversed. In that case, as in subsequent decisions of this court, (e.g., W......
  • Request a trial to view additional results

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