Barnett v. State

• Decision Date: 29 January 1885
• Docket Number: 10,696
• Parties: Barnett v. The State
• Court: Indiana Supreme Court

100 Ind. 171

Barnett v. The State

No. 10,696

Supreme Court of Indiana

January 29, 1885

From the Gibson Circuit Court.

The judgment is affirmed, with costs.

J. E McCullough, J. B. Gamble, J. W. Gordon, R. N. Lamb and S. M Shepard, for appellant.

F. T Hord, Attorney General, and W. B. Hord, for the State.

OPINION

Zollars, C. J.

On the 10th day of February, 1881, appellant shot and killed one James Ellis. He was tried upon an indictment charging him with murder in the first degree, convicted of voluntary manslaughter, and sentenced to the State's prison for ten years. There is evidence in the record showing, or tending very strongly to show, the following facts: Appellant is a strong, vigorous man of about twenty-eight years of age, and weighs about one hundred and eighty-five pounds. The deceased weighed about one hundred and thirty-two pounds, and was about fifty years of age. These persons had some difficulty, and a personal encounter at the October election in 1880, in which appellant struck and knocked the deceased from the sidewalk. There is some testimony that subsequent to this difficulty, appellant on different occasions said that he intended to kill some one, but there is nothing to show, with anything like certainty, that he had reference to the deceased. One witness, however, testified that he had a conversation with appellant a short time before the homicide, in which appellant, in referring to the difficulty with Ellis at the election, said that if he had had his "pop" with him, he would have killed him--that he had his "pop" now. There is evidence also, that subsequent to this difficulty appellant said that if the deceased came in his way, he would "pop" him again, and that the deceased said that he had had a difficulty with appellant that should at some time be settled. On the day of the homicide, the parties met in a saloon in Hazleton, Gibson county. At first there was no manifestations of ill feeling on the part of either. They indulged in drinking, treating each other and those present. Appellant knocked a pipe from the mouth of the deceased, apparently in a playful manner and without ill feeling. Subsequent to this, the deceased tripped appellant so that he fell. Upon getting up, the deceased brushed the dust from his clothes, saying that it was all in fun. Appellant responded that it was on the bills, and must be played. There is evidence that prior to this, the deceased said to appellant that he, appellant, had broken his jaw once, but could not do it again, and that subsequently there was further drinking. Still subsequent to this, appellant, for some cause, not very clearly shown by the evidence, took off his coat and vest laid them upon the counter, and his revolver upon them; said that he could whip the deceased upon less ground than he stood upon, and insisted that they should go from the room and fight it out. At this time, appellant was angry, and cursing and swearing in a violent manner. The deceased did not seem to be angry, and said that appellant was a larger man than he, and that he did not want to fight. After appellant was induced to put his clothes on, he continued cursing the deceased, and finally struck him, as some of the witnesses stated. He continued cursing until the deceased said: "Cal, you ought not to serve me that way, you are a bigger man than I am; I am not able to fight you; Cal. don't curse me, I will take it from no man," etc. Shortly after this, the deceased went to a back room, returned with a heavy quart bottle filled with beer and struck appellant with it upon the head, breaking the bottle and inflicting a wound. At this time, one of the witnesses was standing between appellant and the deceased. If it was his purpose to keep them separated, he did not succeed, for immediately after the blow, appellant seized Ellis and fired his revolver. After the shot, the revolver was knocked from his hand by a bystander. A severe fight followed. Ellis died from the effects of the shot in a few minutes after they were separated. Appellant was arrested on the same day of the homicide, and, when asked why he shot Ellis, said: "Damn him, I ought to have shot him ten years ago."

It must be clear that we can not reverse the judgment on the weight of the evidence. Indeed, had the conviction been for a higher grade of crime, with the corresponding severer penalty, we could not reverse the judgment upon the evidence in the record. There is scarcely plausible ground here, in our judgment, for a claim that the shooting was in self-defence. From the first, appellant was the aggressor. By abuse and assault, he goaded the deceased into an assault upon him. The evidence is conclusive that the deceased had no weapon except the beer bottle. When that was broken, his weapon was gone. The blow with it inflicted a wound upon appellant, but in no material way disabled him. He was a young, stalwart man. The deceased was confessedly his inferior in physical strength. When his weapon was broken, without serious injury to appellant, the latter must have known, and without doubt did know, that he was in no danger of any serious injury. The shooting on his part is utterly without any kind of justification. That the jury in their leniency acquitted him of malice, is no reason at all why we should extend the leniency to an absolute acquittal, or shut our eyes to the whole evidence in the case, when asked to review the case upon the evidence.

Many objections are urged to the instructions given by the court, and to the action of the court in refusing those asked by appellant. To these we give our attention in the order discussed.

In the first and second instructions, the court properly charged the jury as to the crimes of murder in the first and second degree, and manslaughter, and also as to the presumption of innocence and the rule as to reasonable doubt.

After having charged the jury in the third instruction, that the State must prove beyond a reasonable doubt that the killing was unlawful, etc., the instruction closed as follows: "This involves an inquiry into the rules of law in relation to the right of self-defence, the manner of its exercise, and the testimony in the case tending to prove or disprove such a state of facts existing at the time of the alleged killing as authorized a right to resort to the use of a pistol by the defendant in the alleged defence of his person." As we understand counsel, the objections to this portion of the instruction are, that it tended to confuse and mislead the jury, and that from it the jury would understand that the facts proven must be such as to authorize the use of the pistol without reference to appearances, or the belief on the part of appellant that he was in danger of great bodily harm. We think that neither of these objections is tenable. This portion of the instruction did not attempt to lay down rules upon the subject of self-defence, but simply directed the minds of the jury to matters about which they should make inquiry.

The objection urged to the fourth instruction is that it is "scarcely relevant." We think it was, and that it was so favorable to appellant that he has no ground to complain of it. The substance of it was that life may be taken in the reasonable and lawful exercise of the right of self-defence.

The first portion of the fifth instruction was that where 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-defence his assailant is killed, he is excusable.

No objection is urged against this portion of the instruction. After charging the jury in the subsequent portion of the instruction, that a party is not justifiable in resorting to force on his mere passion, or fear, and that in any case the force used must be such as under the circumstances appears reasonably necessary to prevent the anticipated injury, the instruction closes as follows: "If, however, the assault be of such a character, and so imminent as to warrant the party assailed, considering his situation and the apparent surroundings, reasonably to believe that he is in danger of loss of life, or great bodily harm, and he does so believe, he may use, without delay, such means as may be at hand and reasonably necessary to repel the apprehended attack, and if death follows as the result thereof, he will not be guilty of an unlawful homicide; and if in such case the danger appear to be real, and is believed by him to be so, the fact, if such be the case, that the danger was not real, but only apparent, and that in fact he was in no danger, such fact would not render him guilty."

There are some portions of the instruction that, when taken from their connection and subjected to a critical examination, are apparently not in entire harmony with that quoted. These the learned counsel have singled out and made a violent assault upon them. As was once said by this court, it is good military tactics to divide the enemy's forces and defeat and overthrow the separate fractions, as a means of defeating and overthrowing the whole, but it is not proper to adopt such tactics in the examination of an instruction. As said in the case of McDermott v. State, 89 Ind 187, "The instruction should not be thus dissected and separated. It must be considered as a whole. If an instruction may be...