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

221 Ind. 123

46 N.E.2d 599

BRANNIN

v.STATE.

No. 27750.

Supreme Court of Indiana.

Feb. 17, 1943.

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.

FANSLER, Judge.

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: ‘It is not necessary that a person be violently assaulted or assaulted at all, before he has the right to defend himself. A person has a right to act on appearance, and, if he believes in good faith, and upon reasonable grounds, from the facts and circumstances as they appear to him at the time, that he is about to be assaulted, he has a right, if it seems reasonably necessary to him at the time, to use such force as will protect him from the assault.’...