Deilks v. State
| Decision Date | 05 April 1895 |
| Docket Number | 17,324 |
| Citation | 40 N.E. 120,141 Ind. 23 |
| Parties | Deilks v. The State |
| Court | Indiana Supreme Court |
From the Franklin Circuit Court.
Judgment affirmed.
F. M Alexander, for appellant.
W. A Ketcham, Attorney-General, S. H. Spooner and G. L. Gray Prosecuting Attorney, for State.
The appellant was tried by a jury and found guilty of manslaughter, on an indictment charging him with murder in the first degree. The jury assessed the punishment of appellant at imprisonment in the State prison for twenty years, and, over a motion for a new trial, the court rendered judgment on the verdict.
The reasons urged for a reversal are that the court erred in giving to the jury each of instructions twenty, twentyone, and twenty-two; that the court erred in refusing to give to the jury each of instructions four, six, and seven, as requested by appellant.
The part of the twentieth instruction complained of is as follows: "If a person assaulted, being himself without fault, reasonably apprehends death or great bodily harm unless he kills his assailant, the killing is excusable, and if you believe that the defendant was assaulted by deceased in such a manner as to cause him to believe, and he did believe, that he was in imminent danger of losing his life or suffering great bodily harm at the hands of the deceased unless he killed him, and while so believing he killed deceased, he is entitled to an acquittal."
The objection urged to this instruction is that it was not required that appellant should have believed it necessary to kill the deceased in order to excuse him for so doing. This objection to the instruction is not well taken, for the reason that it does not require that the appellant should have believed it necessary to take the life of the assailant. The instruction states that if he did so believe, etc., the killing was excusable.
This instruction has often been approved by this court. McDermott v. State, 89 Ind. 187; Presser v. State, 77 Ind. 274; 1 Bish. Crim. Law, section 865; Runyan v. State, 57 Ind. 80.
The only objection urged to the twenty-first instruction is that the court did not use the words, "if you believe beyond a reasonable doubt," but instead used the words, "if you believe."
The court in at least five instructions gave full and correct and complete information as to every phase of the rule of reasonable doubt and as to the individual responsibility of each juror.
It is a well settled rule that instructions are to be taken together and if when so taken they state the law correctly they will be sustained. Newport v. State, 140 Ind. 299, 39 N.E. 926; Goodwin v. State, 96 Ind. 550; Louisville, etc., R. W. Co. v. Jones, 108 Ind. 551, 567, 9 N.E. 476.
This instruction, when considered in connection with the other instructions given, is not open to the objection urged.
The twenty-second instruction is as follows: "If an act be perpetrated with a deadly weapon, so used as to be likely to produce death, the purpose to kill may be inferred from the act." There was no error in giving this instruction. Newport v. State, supra; Boyle v. State, 105 Ind. 469, 5 N.E. 203; Murphy v. State, 31 Ind. 511.
The fourth and fifth instructions, which appellant requested the court to give the jury, were an attempt to state the law of self-defense, but were fatally defective for the reason that each failed to use the qualifying statement, "if the defendant was without fault."
It is established law that the man who takes another's life must be himself without fault, or he can not go acquit upon the ground of self-defense. It is proper for the trial court to use this qualifying statement, or one of the same meaning. McDermott v. State, supra; Story v. State, 99 Ind. 413; Deal v. State, 140 Ind. 354, 39 N.E. 930.
The seventh instruction requested by appellant was properly refused for the reason that the law of self-defense was stated in such...
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