DeBoor v. State, 30080

• Decision Date: 10 May 1962
• Docket Number: No. 30080,30080
• Citation: 243 Ind. 87,182 N.E.2d 250
• Parties: Frank DeBOOR, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 250

182 N.E.2d 250

243 Ind. 87

Frank DeBOOR, Appellant, v. STATE of Indiana, Appellee.

No. 30080.

Supreme Court of Indiana.

May 10, 1962.

Rehearing Denied June 12, 1962.

Orr & Bridwell, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Harriette B. Conn, Deputy Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant was charged by indictment with the crime of first degree murder under Acts 1941, ch. 148, § 1, p. 447, being § 10-3401, Burns' 1956 Replacement.

The indictment charged the killing of a human being (his stepson) purposely, and with premeditated malice. Upon a plea of not guilty appellant was tried by jury, found guilty of murder in the second degree, and sentenced accordingly.

Fifty-five separate grounds are assigned for a new trial, fifty-four of which have been presented as errors for review by this court.

It has been our experience that the greater the number of errors assigned for review, the less likely there is to be merit in any of them, and this case is no exception to the rule.

However, there are a few alleged errors presented which deserve some attention, and we shall try to accord these such consideration as, in our opinion, they may deserve.

First: Appellant asserts that the evidence is insufficient to show malice and intent and, therefore, is not sufficient to sustain a conviction of any higher degree of homicide than voluntary manslaughter.

There is evidence in the record that appellant, a short time before the shooting, threatened to 'blow his [deceased] brains out', and at other times he had made threats against the deceased--that 'he was going to bash his head in.'

Following an argument between appellant and the deceased in their home over the use of the family automobile, the deceased, who apparently had removed the coil from the car, left the house and walked out to where the automobile was parked. Appellant followed him, and when they arrived at the automobile deceased said he would be back in a second and 'took off running in the alley.' Appellant then opened the trunk of the car, 'took out the shot gun and two cartridges and got in the car and locked the door and loaded the gun.' Appellant testified, as a witness in his own behalf, that the deceased returned to the automobile with 'some kind of instrument and tried to pull open the door', saying, 'I'm coming in there after you and kill you', and he then asked the deceased to 'go away', and when he refused, he (appellant) shot the deceased through the window of the automobile.

Malice and intent could properly have been inferred from the evidence as above summarized, and it is sufficient to support a finding of guilty of murder in the second degree.

Second: Appellant further asserts that he was incapable of forming an 'intent and malice to commit murder' because he had been drinking a 'great deal' the night before and on the day of the shooting. This does not justify the commission of murder.

While this court has held that,

'[T]he rule seems to be universally asserted by the authorities that in all prosecutions for an assault with intent to kill the intoxication of the defendant is admissible in evidence, and should be considered by the jury or court trying the case in determining whether he actually entertained the specific intent essential to the crime charged.' Booher v. State (1901), 156 Ind. 435, 446, 447, 60 N.E. 156, 54 L.R.A. 391; Eastin v. State (1954), 233 Ind. 101, 104, 117 N.E.2d 124.

However, we have also held that,

'While evidence of intoxication is admissible and may be considered in behalf of a person on trial for a crime involving specific intent, it acts as a complete and effective defense only when its degree is such as to render the accused incapable of entertaining the specific intent.' Yarber v. State (1962), ---- Ind. ----, 179 N.E.2d 882, 883; Brattain v. State (1945), 223 Ind. 489, 497, 61 N.E.2d 462, 465.

There is evidence in the record that appellant 'did not stagger', that he walked normally and spoke understandingly, and his actions were the same shortly before and after the shooting.

The degree of intoxication and the effect of alcohol upon appellant, DeBoor, were questions of fact to be determined by the jury. Eastin v. State, supra (1954), 233 Ind. 101, 104, 117 N.E.2d 124; Booher v. State, supra (1901), 156 Ind. 435, 446, 447, 60 N.E. 156, 54 L.R.A. 391.

The evidence here is sufficient to support a finding that appellant was in full command of all of his faculties and fully capable of maliciously intending the consequences of his act in shooting his stepson.

Third: Appellant further asserts that he had a right to defend himself and his property, when he was in a place where he had a right to be, and from his viewpoint it reasonably appeared that he would probably suffer personal injury.

Whether or not appellant shot and killed the deceased, Rex Curtis, in self-defense was an ultimate fact solely for the determination of the jury from the evidence. Schlegel v. State (1958), 238 Ind. 374, 378, 150 N.E.2d 563.

The evidence on that question here is in dispute, and under such circumstances we will not disturb the verdict of the jury if it is supported by substantial evidence of probative value.

The jury could have found from the evidence hereinabove summarized that the killing was not done in self-defense. There is also other evidence in the record which supports the verdict of the jury on this point, but we deem it unnecessary to encumber this opinion further by a discussion thereof.

Fourth: It is also asserted that appellant was 'emotionally unstable' and was afraid of his stepson (the deceased) because of numerous threats, which had been made by deceased to injure him and take his life. These were all matters included in the question of self-defense.

Threats alone are not sufficient to justify the taking of a human life and the weight to be given any testimony relating to threats directed at appellant by his stepson were properly considered by the jury in connection with the question of self-defense. See Bange v. State (1958), 237 Ind. 422, 426, 146 N.E.2d 811.

Fifth: Appellant asserts error in refusing to give his tendered Instructions Nos. 4, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50 and 51.

We deem it unnecessary to burden this opinion by setting out all of these tendered instructions in full. Many of them are in parts repetitious and attempt to instruct the court in detail on subjects which are substantially covered by other instructions given by the court.

'A trial court, although requested so to do, is not required, nor would it be justified in emphasizing any particular phase of a case by repeating propositions of law, however applicable thereto they may be.' Fehlman v. State (1928), 199 Ind. 746, 755, 161 N.E. 8, 11.

The trial court is not required to accept tendered instructions and give them in the exact language in which they are submitted. It may, so long as they are proper, give instructions in its own language, and when a subject is substantially covered in an instruction given by the court, it is not error to refuse one tendered by the defendant which is in substance the same but is couched in different language. Bange v. State, supra (1958), 237 Ind. 422, 435, 146 N.E.2d 811.

A careful comparison of appellant's Instructions Nos. 4, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 28, 35, 36, 37, 48, 49, 50 and 51, discloses that they are in substance the same and only emphasize a particular phase of the subjects covered by the Court's Instructions Nos. 15, 19, 28, 29, 30, 31, 32 [243 Ind. 94] and 42. For these reasons the trial court properly refused to give them.

Appellant's tendered Instructions Nos. 39, 40, 41, 42 and 44 pertain to the question of 'reasonable doubt', and are in substance the same as the court's preliminary Instructions Nos. 15, 16, 17 and 19, and they likewise were properly refused.

The subject matter of tendered Instructions Nos. 23 and 26 is substantially covered by the Court's Instructions Nos. 10 and 33, and it was not error to refuse them.

Tendered Instruction No. 30 pertains to the subject of intoxication and is covered, in substance, by the Court's Instructions Nos. 6, 7 and 33, and this instruction was also properly refused.

Also, the subject of tendered Instruction No. 47 is covered by the Court's Instructions ...