Brannin v. State, 27750.
| Decision Date | 17 February 1943 |
| Docket Number | No. 27750.,27750. |
| Citation | 221 Ind. 123,46 N.E.2d 599 |
| Parties | BRANNIN v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Eva Brannin was convicted of manslaughter, and she appeals.
Reversed with instructions.Appeal from Circuit Court, Vigo County; John W. Gerdink, judge.
Frank Hamilton and Charles C. Whitlock, both of Terre Haute, for appellant.
George N. Beamer, Atty. Gen., and Norman E. Duke, Dep. Atty. Gen., for appellee.
The appellant was convicted of manslaughter.
At the request of the state, the court instructed the jury as follows: ‘It is immaterial what attack William Guess had formerly made upon Callie Sprague or what threat he had made, if at the time of the firing of the shot he was not then engaged in an attack upon Callie Sprague, from which it reasonably appeared to the defendant that Callie Sprague was in danger of death or great bodily harm, as the defendant had no right to shoot to revenge some past attack, or to prevent a future attack then being threatened by mere words.’
This is an erroneous statement of the law. In Hughes v. State, 1937, 212 Ind. 577, 585, 586, 10 N.E.2d 629, 633, we said: This right also extends to the protection to one's family.
The court refused to give an instruction correctly stating the law tendered by the defense. It is contended that the substance of this latter instruction was covered by other instructions given, but a careful examination discloses that it was not. But if it had been given, or if the substance had been covered by other instructions, it would not have cured the giving of the erroneous instruction above set out. ‘An erroneous instruction is not corrected by giving a correct one, unless the improper one is withdrawn.’ Flick v. State, 1935, 207 Ind. 473, 477, 193 N.E. 603, 605.
Judgment reversed, with instructions to sustain the motion for a new trial.
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