Bohan v. State

• Decision Date: 31 October 1923
• Docket Number: 24,165
• Citation: 141 N.E. 323,194 Ind. 227
• Parties: Bohan v. State of Indiana
• Court: Indiana Supreme Court

141 N.E. 323

194 Ind. 227

Bohan v. State of Indiana

No. 24,165

Supreme Court of Indiana

October 31, 1923

Rehearing Denied February 6, 1924.

From Tippecanoe Circuit Court; Homer W. Hennegar, Judge.

Stephen A. Bohan was convicted of manslaughter and he appeals.

Affirmed.

John B Hudson, Daniel P. Flanagan, Clyde H. Jones and Moses B. Lairy, for appellant.

U. S. Lesh, Attorney-General, Mrs. Edward Franklin White, Deputy Attorney-General, and Stuart, Simms & Stuart, for the State.

OPINION

Willoughby, C. J.

The appellant was indicted for murder, in the first degree. He entered a plea of not guilty. The trial was by jury resulting in a verdict of manslaughter. After a motion for a new trial was overruled, judgment was rendered on the verdict. Appellant has appealed from such judgment and the error relied upon for reversal is: "The court erred in overruling appellant's motion for a new trial." The questions which arise upon this appeal are upon the sufficiency of the evidence to sustain the verdict and on the giving and refusing of certain instructions. The appellant tendered eleven instructions and requested that they be given. The court gave Nos. 1, 2, 3, 4, and 5 of said instructions and refused to give the balance.

Instruction No. 6 tendered by the appellant is as follows: "It is the law of self-defense that if the danger appears to be real, or imminent, to the person unlawfully attacked, and such person believes that it is real, and that he is in immediate or imminent danger of receiving great bodily harm or losing his life, when in fact it was not real but only apparent, he would not for that reason be guilty, for the question of apparent necessity to repel the assault must be determined from the standpoint of the party attacked at the time and under all of the existing circumstances. The question of apparent necessity as well as the amount of force necessary to employ to resist such attack can only be determined from the standpoint of the defendant at the time and under all the existing circumstances. Ordinarily one exercising the right of self-defense is compelled to act on the instant and with no time for deliberation or investigation and under such circumstances the danger which exists only in appearance may be to him as real and imminent as if it were actual."

It is claimed by the state that the court committed no error in refusing to give instruction No. 6 tendered by appellant because each proposition embraced in it is fully and adequately covered by the following instructions given by the court, to wit, No. 3, tendered by appellant and given, Nos. 29, 30, and 35, given by the court on its own motion.

No. 3 tendered by the appellant and given is as follows: "If you find that the defendant, Stephen A. Bohan, at the time the conflict occurred was in a public street of the city of Lafayette and that while on said street he was unlawfully attacked by Clarence Rawles, then, I charge you that under such circumstances if without fault in bringing on the attack Bohan had a right to defend himself against such assault without retreating or attempting to escape. Under such a state of facts he had a right to stand his ground and to repel force with force and he also had a right to use a weapon in his defense if he, at the time, reasonably and in good faith believed, and had good reason so to believe, that it was necessary to do so in order to save himself from suffering death or receiving great bodily harm at the hands of his assailant; and if death of his assailant so resulted the law excuses him."

Instructions Nos. 29 and 30 and 35, given by the court of its own motion are as follows:

Instruction No. 29: "It is the law of self-defense that the party assaulted has the right to repel force by force, and when, from the acts of the assailant, and from all appearances surrounding, he honestly believes he is in danger of losing his life or of receiving great bodily harm from his adversary he has the right to defend himself from such apprehended danger to any extent which appears to him to be reasonably necessary, even to the taking of the life of his assailant. This is so whether the appearances of danger which were presented to him were real or not."

Instruction No. 30: "The court instructs the jury that the law of self-defense is emphatically the law of necessity to which a man may have recourse under proper circumstances to protect himself against death or great bodily harm. If in this case you find from the evidence that the defendant honestly believed from all the circumstances and appearances, as they were then present to his mind immediately before the shooting that he was in danger of losing his life or suffering great bodily harm at the hands of the deceased, or that he had reasonable cause to apprehend a design on the part of the deceased to commit a felony upon him, and that he reasonably apprehended immediate danger of such designs being carried out and that he shot and killed the deceased to prevent the accomplishment of such apprehended design then the killing is justified upon the ground of self-defense, and you should acquit him."

Instruction No. 35: "It is the law of self-defense that the party assaulted repelling force by force, need not believe that his safety requires him to kill his adversary in order to give him the right to make use of force for that purpose. When from the acts of his assailant he believes and has reasonable ground to believe that he is in danger of losing his life, or receiving great bodily harm from his adversary, the right to defend himself from such apprehended danger may be exercised by him and he may use it to any extent which appears to him to be reasonably necessary. The question of apparent danger must be decided from the appearances presented to the eyes and mind of the defendant himself and must depend upon the circumstances as they appear to him in the light of all the facts that were then present to his mind and can only be determined from the defendant's standpoint and not from the standpoint of some other ideal person of ordinary prudence."

These instructions fully cover every principle of law embodied in defendant's instruction No. 6. Where propositions of law have been fully and fairly stated once, the court is not required to give additional instructions tendered covering the same points and propositions. Barnett v. State (1885), 100 Ind. 171. Instruction No. 6 therefore, was properly refused and no error was committed by the court with respect thereto.

No question is presented on the refusal of the court to give defendant's instruction No. 7, for failure to state any point or cite any authorities under the heading of "Points and Authorities." Knapp v. State (1907), 168 Ind. 153, 79 N.E. 1076, 11 Ann. Cas. 604; Myers v. State (1922), 192 Ind. 592, 137 N.E. 547, 24 A.L.R. 1196.

Defendant's instruction No. 8 is as follows: "If you find from the evidence that immediately before the struggle in which the fatal shot was fired took place, the defendant was on a public street in the city of Lafayette, then I charge you he was in a place where he had a right to be." This instruction is unfortunately worded and is not a complete statement of the law. The legal principle embodied in it is covered in the court's instruction No. 47 1/2, which is as follows: "Streets in the city of Lafayette, Indiana, are public places and all persons have the legal right to be on and use the same for lawful purposes." And in instruction No. 3 tendered by appellant and given. There was no error in refusing to give this instruction.

Instruction No. 9, tendered by the appellant, is as follows: "The fact, if it be a fact, that, on the night of the alleged homicide, Stephen A. Bohan had accompanied Mrs. Anderson and Mrs. Rawles to the apartment of Eldon Lewis, and had spent the evening there, would not put him in fault so as to deprive him of the right to defend himself against an unlawful assault afterwards made on him in the street, nor would it require him to retreat or attempt to escape before making such defense."

It is claimed by the state that this instruction invades the province of the jury with respect to the facts in that it takes away from them the question, under the evidence, as to whether or not the defendant was or was not at fault in the encounter between himself and the decedent. It singles out only a few of the facts which the jury were required to pass upon in determining whether or not the defendant was at fault, and is so phrased that it might mislead the jury into believing that the facts recited were the only facts material to the subject. It was the duty of the jury to determine whether the appellant was at fault in the encounter between himself and the decedent so as to deprive him of the right of self-defense. In order to determine that question it was necessary that they should consider all the facts in evidence bearing upon that subject. The phrases "being without fault" and "in a place where he had a right to be" mean without fault in bringing on the combat, and having a legal right to be at the place. There was evidence tending to show that the appellant and Mrs. Anderson and Mrs. Rawles were in the apartment of Eldon Lewis on the night of the difficulty which resulted in the death of Rawles and that appellant while in there had seen him pass the window. That appellant, when Mrs. Anderson and Mrs. Rawles were ready to leave, went out to see whether Rawles was in the neighborhood. That before going out appellant put a revolver in his pocket. These facts and many others disclosed by the evidence are not embodied in instruction No. 9 tendered by the appellant. It appears that some of the facts not embraced in the statement in instruction No. 9 were...