Berry v. State
| Decision Date | 30 May 1978 |
| Docket Number | No. 977S640,977S640 |
| Citation | 268 Ind. 432,376 N.E.2d 808 |
| Parties | William A. BERRY, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Indianapolis, for appellee.
Appellant was convicted of second degree murder and sentenced to 15 to 25 years' imprisonment. The evidence most favorable to the State indicates that on August 30, 1976, appellant entered a candy store in Gary. The decedent, Frank Mathis, then entered and began shouting at the appellant. As the two started to argue the store owner, Stan Hess, ordered them to leave. Mathis left and ran across the street. As appellant was leaving the store Mathis returned and met him at the door. Hess followed them outside and again ordered them to leave as he did not want any trouble in front of his store. Hess was standing between them and attempting to keep them separated. Mathis asked appellant where his money was. Appellant did not reply. Mathis again asked. At that time appellant pulled a gun and ordered Mathis against the building. Appellant then fired three or four shots and fled. Mathis died as a result of the wounds sustained.
Appellant contends he acted in self-defense. To prevail on a claim of self-defense appellant must have been in a place where he had a right to be, acted without fault and, in good faith, believed himself to be in real danger of death or great bodily harm. White v. State (1976), Ind., 349 N.E.2d 156. The State is required to prove the absence of one of these elements of self-defense and this burden may be satisfied by reliance upon its evidence in chief. Nelson v. State (1972), 259 Ind. 339, 287 N.E.2d 336. Although Mathis was the instigator of the altercation, there is evidence in this record from which the jury could logically find that Mathis only shouted at the appellant and that it was appellant who pulled a gun and ordered Mathis against a building, then, without further provocation, shot Mathis. On the other hand, there is evidence from which appellant argues the jury should have found that he was acting in self-defense. Hess testified that Mathis had told appellant he was, "going to bust his head." Appellant himself testified that he thought Mathis was pulling a gun from his pocket at the time. However the State produced evidence showing that Mathis had no gun. He did have a knife in his clothing but it was found inside his pants leg. The jury could have concluded from this that the knife was not available to Mathis to be drawn. It was within the...
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