Colondro v. State
| Citation | 125 N.E. 27,188 Ind. 533 |
| Decision Date | 18 November 1919 |
| Docket Number | 23,563 |
| Parties | Colondro v. State of Indiana |
| Court | Supreme Court of Indiana |
From Lake Superior Court; Walter T. Hardy, Judge.
Prosecution by the State of Indiana against Michael Colondro. From a judgment of conviction, the defendant appeals.
Affirmed.
C. B Tinkham and Ralph W. Ross, for appellant.
Ele Stansbury, Attorney-General, A. B. Cronk and Dale F Stansbury, for the state.
Appellant was indicted for murder, tried by a jury, and convicted of manslaughter.
He complains of the court's instructions Nos. 7, 9 and 10 on the subject of self-defense, because they base appellant's right to self-defense on his being "in a place where he had a right to be so far as his assailant was concerned." Appellant's counsel says that none of these instructions takes into account the proposition that a person, in a place where he has no right to be so far as his assailant is concerned, may be suddenly attacked with a deadly weapon and driven to the wall. Counsel further claims error in these instructions because they do not take into account appellant's good faith in believing that he was where he had a right to be so far as his assailant is concerned.
In counsel's second claim he is not quite accurate. Appellant's belief that he was in a place where he had a right to be does not make his right of self-defense; but it goes to rebut his bad faith in bringing on the conflict, and when coupled with the fact that he is so suddenly attacked with a deadly weapon that there is no opportunity to escape, his right of self-defense is perfect.
Appellant's counsel says that there was evidence from which the jury might infer that appellant was knowingly where he had no right to be, but that this evidence was only shadowy and not legally conclusive, and that therefore these instructions misled the jury into thinking that appellant could never have the right of self-defense when in a place where he had no right to be, so far as his assailant is concerned.
Appellant admits that these instructions given by the court are correct in principle, but his complaint is that these principles are not elaborately enough applied to his theory of defense. If appellant wanted these principles more particularly applied to his theory, he should have tendered instructions on this phase of the case. Colee v. State (1881), 75 Ind. 511, 516. Counsel does not call our attention to any instructions tendered by him and refused by the court. The court did not err in the above instructions on the points claimed by the appellant.
Appellant next complains of the court's instruction No. 18. This instruction told the jury, in substance, that, if they found that any witness had made statements out of court at variance to his testimony on the stand, this might tend to impeach the recollection or the truthfulness of the witness, and the jury might consider this in determining the weight to be given to the testimony of such witness.
Thus far the instruction is correct and is favorable to appellant, for he attempted to show that some of the state's witnesses had made statements out of court at variance to their testimony on the stand.
The court, however, closed the above instruction with this sentence: "And if you believe from the evidence that the moral character of any witness, or witnesses, has been successfully impeached on this trial, then that fact may be taken into consideration in estimating what weight you ought to give to their testimony." This sentence in the instruction covers a phase of the law on which there is no evidence in the case. It was therefore erroneous and should not have been given. Instructions should announce the law applicable to the evidence. It is error for the court to announce propositions of law, even though correct, where there is no evidence on that subject. The reason for this is obvious. The jury are trying to apply all of the instructions of the court to the evidence, and the court, by instructing outside of the evidence, misleads the jury by practically telling them that there is some evidence on the subject. This error of the court, however, is a very slight one. It is on a subsidiary matter not like a principle of law going to the very gist of the charge or the defense. It was error, but not reversible error. The evidence in this case shows that appellant was clearly and conclusively guilty of all that the jury found by their verdict; therefore this court should not be nice to find error upon which to reverse the judgment.
The evidence shows that appellant was a trackwalker on a railroad in the steel company's plant at Gary Indiana; that the decedent was a watchman at a bridge over the Calumet river; that he (decedent) was stationed at the end of the bridge next to the plant to prevent persons from going over this bridge; that on the evening in question, appellant came from his work between five and six o'clock; that, instead of walking along the road where workmen were walking, he walked ten or fifteen feet from the road on the side next to this watchman; that the watchman saw him and told him to get back on the road; that thereupon a physical encounter occurred between the two; that both went into their pockets for knives; that the watchman got his knife out first and struck several blows; that one blow above appellant's eye caused blood to run down over his face; that appellant broke away from decedent; that after this first encounter, and at the time appellant broke away from the decedent, they were ten or fifteen feet apart; that a foreman, who was in an office about 300 feet away from the controversy, seeing this first combat, came out and remonstrated with appellant and decedent and told appellant to go home;...
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