Clark v. The State
| Decision Date | 18 June 1902 |
| Docket Number | 19,803 |
| Citation | 64 N.E. 589,159 Ind. 60 |
| Parties | Clark v. The State |
| Court | Indiana Supreme Court |
From Hancock Circuit Court; E. W. Felt, Judge.
Noah M Clark was convicted of an assault and battery with intent to commit murder in the second degree, and he appeals.
Reversed.
E Marsh and W. W. Cook, for appellant.
W. L Taylor, Attorney-General, C. C. Hadley, Merrill Moores, Binford & Walker, Barrett & Wiggins and A. C. Vanduyn, for State.
Appellant was indicted for an assault and battery upon one William Reed with the felonious intent to commit murder in the first degree. On a trial before a jury, he was convicted of an assault and battery with the intent to commit murder in the second degree, and over his motion for a new trial, was sentenced to be imprisoned in the reformatory prison at Jeffersonville for an indeterminate period of from two to fourteen years, and to pay a fine of $ 5, together with all costs. From this judgment he appeals. On the trial, appellant justified his act of committing the assault and battery in controversy upon the prosecuting witness on the ground of self-defense. The errors assigned and discussed by his counsel relate (1) to the giving of certain instructions to the jury; (2) misconduct of the State's attorney in his argument to the jury; and (3) error of the court in refusing a new trial on newly discovered evidence.
There is in the record evidence to prove that appellant and Reed, the prosecuting witness, both resided in the town of Fortville, in Hancock county, Indiana, and on a certain night in August, 1901, Reed and appellant were around the saloons of that town, appellant spending the greater portion of the evening in the saloon of Chapple & Crist, and, on this saloon being closed at eleven p. m., he left and went out on the street, and in a short time thereafter he, in company with some others, walked up to where Reed was standing and handed him a handkerchief which he said belonged to one of Reed's brothers. A controversy then appears to have arisen between the parties in respect to a fight which appellant had with Reed's brother some seven or eight years in the past. Reed seems to have controverted the claim of appellant that he had whipped the former's brother in that fight, and each appears to have charged the other with being a liar. Thereupon they clinched each other and engaged in a fight. In the struggle they both fell to the ground, appellant falling on top of Reed. Thereupon the latter drew a razor, which he had concealed about his person, and began to cut appellant. He cut him in the arm, and also cut his coat in several places. The parties were then separated by bystanders. After they were separated it is shown that appellant was bleeding profusely from the cut in his arm, and more opprobrious language passed between the parties. Appellant, as disclosed, after he got up threw some stones at Reed, one of which struck him on the head, and he also fired a revolver which he had. In justification of his shooting on this occasion he claimed, upon the trial, that Reed, after they had been separated, rushed towards him, and that he told him to stand back, and thereupon fired his revolver over Reed's head in order to frighten him. Reed then left and went down to Dr. Stewart's office for the alleged purpose of having his head dressed by the doctor. The office was closed, and he was directed to wait until the doctor could come to the office. Reed, then, it appears, went and stood near the mouth of an alley opposite Dr. Stewart's office. He claimed on the trial, when testifying, that he was standing there waiting for the doctor to come and open the office. Some time after Reed started to the doctor's office, after the first encounter, which it appears occurred between eleven and twelve o'clock at night, appellant, according to his own version and testimony in respect to the matter, started to go home; that his arm, by reason of the cut which Reed had inflicted with his razor, was bleeding profusely, and that he was much excited, and, as he was passing down the street on his way home, when he reached the point where Reed was standing near the mouth of the alley, the latter came at him, and threw a brick which struck him on the shoulder. Reed, then, as appellant claims, ran towards him, and began to strike at him with a razor or knife which he had in his hand, and succeeded in cutting several gashes in his clothes, cutting him across the arm of the coat; that after Reed struck him with the brick, and after cutting his clothes with a razor as stated, Reed ran out to a point ten feet near the mouth of the alley, and stooped down to pick up a brick or stone, and appellant, believing that he was about to be assaulted again by Reed with a brick, drew his revolver and fired, the shot taking effect in the region of Reed's hip. The evidence of the latter given upon the trial is in sharp conflict with appellant's statements and version of the assault or affair in the alley. The State claimed, and introduced evidence in support of its claim, to the effect, that after Reed and appellant had been separated at the time of their first fight, and after the former had started for the doctor's office, appellant followed Reed, overtaking him at the alley in question; that Reed heard appellant coming after him and thereupon picked up a brick and threw it at him. Reed stated that he did not know whether the brick hit appellant or not; that, after he threw the brick, he testified that he started and ran towards the doctor's office, and when about ten or fifteen feet away from appellant, the latter shot at him with his revolver, the ball hitting him near the hip.
The trial judge in his charge to the jury, after giving some general instructions and one special instruction relating to the law of self-defense, gave the following instruction in respect to the claim of appellant, that, under the facts, his act of shooting the prosecuting witness was justified on the ground of self-defense: "If, however, you believe from the evidence, beyond a reasonable doubt, that the prosecuting witness, at the mouth of the alley, or near thereto, threw a brick at or against the defendant, or otherwise assaulted him, and immediately thereupon turned and fled from the defendant, and that, while so fleeing, the defendant, not reasonably apprehending death or great bodily harm, shot the prosecuting witness, Reed, such shooting would not be justifiable, and you would be warranted in finding the defendant guilty, as charged in the indictment."
Counsel for appellant vigorously assail and condemn this charge because, as they assert, it is misleading, and that the effect thereof was to advise the jury that the law cast the burden upon the defendant of satisfying them by evidence beyond a reasonable doubt, that he properly exercised his right of self-defense. In other words, counsel contend that the court, under this instruction, in effect, informed the jury that if they found beyond a reasonable doubt that the prosecuting witness, at or near the mouth of the alley in question, assaulted the defendant with a brick, or if they believed, beyond a reasonable doubt, that he...
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