Bowlus v. The State

• Decision Date: 03 November 1891
• Docket Number: 16,242
• Citation: 28 N.E. 1115,130 Ind. 227
• Parties: Bowlus v. The State
• Court: Indiana Supreme Court

28 N.E. 1115

130 Ind. 227

Bowlus v. The State

No. 16,242

Supreme Court of Indiana

November 3, 1891

Petition for a Rehearing Overruled Jan. 29 1892.

From the Fountain Circuit Court.

Judgment affirmed.

J. W Sutton and W. L. Rabourn, for appellant.

A. G Smith, Attorney General, for the State.

OPINION

McBride, J.

The appellant was convicted of an assault and battery with intent to kill.

On the trial he testified as a witness that prior to the commission of the alleged offence he was informed by some of his neighbors that the prosecuting witness had threatened to shoot him.

He was then asked the following question: "Now, I'll ask you to state if you know of his making any attacks with any knives or weapons on any one else?" The court permitted him, over the objection of the State, to answer the question, and he answered it, "Yes, sir." He then, in answer to questions propounded by his attorneys, testified to an occasion when the prosecuting witness had some trouble with another person, while both were engaged in a corn field cutting corn, when the prosecuting witness threatened to cut the other person with his corn knife, and that he, the defendant, separated them. Also of another occasion when the prosecuting witness sharpened his knife in anticipation of trouble, and that he took him away.

In rebuttal the State was allowed to call and examine witnesses as to the reputation of the prosecuting witness in the neighborhood where he resided for "peace and quietude." To this evidence the appellant objected and excepted.

The only alleged error argued by counsel for the appellant relates to this action of the court.

It is objected by the State that the question is not properly presented, for the reason that there are two bills of exceptions,--one purporting to contain all of the evidence, and the other partial; and that in that purporting to contain all of the evidence the objections to this testimony, made in the circuit court, were not sufficient to present any question. This is true, but the objections and exceptions are sufficiently shown by the other bill, and we are obliged to consider both bills of exceptions together. Both were filed within the time limited by the court, and both bear the approval and attestation of the presiding judge. The negative evidence afforded by one bill of exceptions that a given objection was not made and a given exception was not taken because not shown by that bill, is overcome by the affirmative evidence of the other that the objection was duly made and excepted to at the time. Pitzer v. Indianapolis, etc., R. W. Co., 80 Ind. 569.

The accused defended on the ground that he was acting in self-defence, and testified to an attack on him by the prosecuting witness, and that what he did was merely in repelling such attack.

The evidence of previous threats, made by the prosecuting witness, and communicated to the accused prior to the commission of the alleged offence, was competent in view of the defence made. Indeed, evidence of this character is held competent where the alleged threats were unknown to the accused; but, as bearing on the question of self-defence, where they have been previously communicated to the accused, they are clearly competent as tending to show what was in his mind at the time, and to justify his conduct. Holler v. State, 37 Ind. 57; Wood v. State, 92 Ind. 269; Leverich v. State, 105 Ind. 277, 4 N.E. 852. And, in connection with such threats, it is competent for the defence to show in such case the general reputation of the injured party for strength, ferocity, vindictiveness, quarrelsomeness, etc. Wharton Crim. Ev., section 74; Holler v. State, supra; Dukes v. State, 11 Ind. 557; Horbach v. State, 43 Tex. 242; 1 Wharton Crim. Law, section 641.

One exercising the right of self-defence must necessarily act in...