Bowens v. State, 28930

• Citation: 231 Ind. 559,109 N.E.2d 91
• Decision Date: 12 December 1952
• Docket Number: No. 28930,28930
• Parties: BOWENS v. STATE.
• Court: Supreme Court of Indiana

Page 91

109 N.E.2d 91

231 Ind. 559

BOWENS v. STATE.

No. 28930.

Supreme Court of Indiana.

Dec. 12, 1952.

Thomas M. Crowdus, Indianapolis, for appellant.

J. Emmett McManamon, Atty. Gen., John Ready O'Connor, William T. McClain and Thos. J. Faulconer, III, Deputy Attys. Gen., for appellee.

JASPER, Judge.

Appellant was charged by indictment with murder in the first degree, under § 10-3401, Burns' 1942 Replacement. He was found guilty of manslaughter by a jury, and was sentenced to serve not less than two nor more than twenty-one years in the Indiana State Prison. From a judgment on the verdict, he presents this appeal.

The sole assignment of error is the overruling of appellant's motion for new trial. Under this assignment, appellant asserts that the verdict was not sustained by sufficient evidence and was contrary to law.

Appellant contends that the evidence shows without conflict that his killing of the deceased was done in self-defense.

The evidence most favorable to appellee reveals that appellant, on December 2, 1950, met his wife and Raymond Bowens in a shoe repair shop; that the three went to the home of appellant where they drank some whiskey; that during the evening both appellant and the deceased, Raymond Bowens, cried; that appellant slapped his wife while arguing over money, and Raymond Bowens protested. The deceased was then going to take appellant's wife 'out of there'; that she got her coat 'and was going to carry Raymond out of there.' Appellant then ran upstairs for his gun, and when his wife next saw him he was on the third step from the top with the gun in his hand. She then ran outside. The deceased was standing by the kitchen door with his hat and coat on. Appellant's wife pleaded with the deceased to come out. In answer to the question: 'Did you see him then go out?' she answered: 'I said I saw him make two or three attempts, but I don't know whether he was trying to come out or not. I kept on pleading with him to come out, and he wouldn't come out.' She said that she then heard a gunshot and ran to call the police. She saw her husband leave the house. He climbed over the woodshed.

Raymond Bowens, the deceased, was found lying on the kitchen floor, with his head in the doorway, about ten feet from the stairway, with an open knife a few inches south of his right hand, and with a gunshot wound in his head, from which he died on December 3, 1950. An empty shotgun shell was found near the stairway. Appellant admitted that he was standing on the stairway and shot the deceased. Appellant was unharmed, and the knife found near the deceased had nothing on it. In a conversation, the wife of appellant stated to her husband: 'Willie, you didn't have to do that. You didn't have to kill Raymond Bowen.'

Self-defense is an ultimate fact solely for the determination of the jury. Landreth v. State, 1930, 201 Ind. 691, 171 N.E. 192, 72 A.L.R. 891; 26 Am.Jur., Homicide, § 512, p. 511.

This court said, in Myers v. State, 1922, 192 Ind. 592, 594, 137 N.E. 547, 548, 24 A.L.R. 1196:

'The first two causes in support of the motion for a new trial rely upon insufficient evidence to sustain the verdict. We have carefully examined the evidence, especially that pertaining to appellant's claim of self-defense. In that respect the evidence before us so strongly supports her contention that if we were permitted to weigh and pass upon it, we would not hesitate to say that it was sufficient to raise a reasonable doubt which would justify an acquittal of the accused. Trogdon v. State, 1892, 133 Ind. 1, 32 N.E. 725; Plummer v. State, 1893, 135 Ind. 308, 34 N.E. 968; Clark v. State, 1902, 159 Ind. 60, 65, 64 N.E. 589. But we cannot weigh the evidence nor say what inferences the jury might reasonably draw from the evidence or circumstances pertaining to her possession of a deadly weapon, or her action in remaining in the room with a person whom she knew to be a dangerous character without sooner attempting to depart, and when she reasonably might have expected trouble with him. These and any other surroundings bearing upon the necessity or apparent necessity, as well as the amount of force necessary to employ to resist an attack, can only be determined from the standpoint of the appellant at the time and under all the existing circumstances, and were all proper matters for the jury alone to consider and weigh in determining whether or not she committed the homicide in the reasonable exercise of the right of self-defense, and its conclusion thereon the record before us will not allow us to disturb. King v. State, 1918, ...