Duncan v. State
| Decision Date | 17 December 1908 |
| Docket Number | No. 21,265.,21,265. |
| Citation | 171 Ind. 444,86 N.E. 641 |
| Parties | DUNCAN v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Hancock County; R. L. Mason, Judge.
Francis M. Duncan was convicted of murder in the second degree, and appeals. Affirmed.Sanford & Glascock and Felt & Binford, for appellant. Charles L. Tindall, Pros. Atty., James Bingham, A. G. Cavins, H. M. Dowling, and E. M. White, for the State.
Appellant was convicted of murder in the second degree, and assigns error upon the overruling of his motion for a new trial. The motion for a new trial was predicated upon the giving of improper instructions, the refusal to give instructions at the request of appellant, and the erroneous admission and exclusion of evidence.
Instructions numbered 4, 26, 29, and 30, given by the court, are attacked upon the ground that in each of them the burden of establishing his defense beyond a reasonable doubt was erroneously imposed upon appellant. Agreeing upon the legal principle involved, and conceding the truth of this contention, the state insists that the erroneous expression, if any, embodied in these instructions, will not constitute available error, since appellant requested and caused the court to give other instructions containing the same error and in which he expressly assumed the burden of establishing his alleged defense to the exclusion of a reasonable doubt. Instruction numbered 32, given at appellant's request, and others tendered, required him to prove every element of self-defense beyond a reasonable doubt to justify the killing and authorize his acquittal. This instruction is as clearly open to the criticisms urged as any given by the court of his own motion or at the instance of the state. When it appears that an appellant has incorporated an erroneous principle or declaration of law in an instruction and requested the same to be given, it is well settled that he will be held to have invited such error, and estopped from complaining that other instructions of the same import were given by the trial court. Elliott's App. Procedure, §§ 626, 627, 630; 12 Cyc. p. 885; Lawson v. State (Ind.) 84 N. E. 974;Eacock v. State, 169 Ind. 488, 82 N. E. 1039;Indianapolis, etc., Co. v. Kidd, 167 Ind. 402, 79 N. E. 347, 7 L. R. A. (N. S.) 143;Indiana, etc., Co. v. Jacobs, 167 Ind. 85, 93, 78 N. E. 325;Consolidated Stone Co. v. Morgan, 160 Ind. 241, 247, 66 N. E. 696; Baltimore, etc., Ry. Co. v. Conoyer, 149 Ind. 524, 48 N. E. 352, 49 N. E. 452; Louisville, etc., Ry. Co. v. Miller, 141 Ind. 533, 37 N. E. 343.
It is next contended that certain instructions given tended to confuse the jury, and to cast suspicion upon the doctrine of self-defense. The instructions set out are not open to the first criticism advanced, nor fairly subject to the charge of disparaging the right of self-defense. The law of self-defense is available only to those who act honestly and in good faith, and cannot be employed as a shield for the protection of one clearly guilty of murder. It is not improper for a trial court in a case involving a disputed claim of self-defense, after fully instructing upon that subject, to admonish the jury that, if upon the facts and circumstances shown by the evidence in the case on trial it appears beyond a reasonable doubt that in taking the life of the deceased the defendant was not honestly and in good faith exercising such right of self-defense, he cannot be acquitted upon that ground. The instructions under consideration were within the principle above declared, and fully warranted by the evidence.
Complaint is made of the refusal to give appellant's instructions numbered 21, 28, and 391, as requested. These instructions reiteratedappellant's right to be in the public alley in the rear of the premises upon which the deceased was living at the time of the encounter, and asserted the further proposition that although it be conceded that appellant had theretofore sustained illicit sexual relations with the wife of the deceased, and at the time in question was in the alley seeking an opportunity for having such intercourse, such fact would afford no legal excuse or justification for an attack upon him by the deceased. The jury were fully advised by numerous instructions that while in the lawful use and enjoyment of the public alley appellant was in a place where he had a right to be; but the idea sought to be impressed by the second proposition embraced in the requested instruction is radically and grossly wrong. The deceased was not on trial for an assault upon appellant, and it was but incidentally material whether or not he was legally justifiable in making such assault, if any was in fact made. Appellant claiming that he was assaulted, and in defending himself killed his adversary, the important question was whether he was free from fault tending to provoke the fatal encounter. In this connection one of the instructions refused declared that, being in a public alley, appellant should be held without fault unless shown to be at the time committing some act in violation of the law of the land. The highways are provided for the use of the public as a general means of travel, and may not be rightfully employed for lascivious and immoral purposes. If appellant armed with a deadly weapon was lurking about the alley for the sole purpose of debauching the wife of the deceased, and thus menacing the personal safety, and the sanctity of the home of deceased, when attacked, he was not in a place where he had a right to be and without fault. It would be a reproach upon the law and our civilization to acquit a villain of fault in provoking an attack upon himself by his intended victim while lurking about his premises in the darkness for the avowed purpose of kidnapping, or committing larceny, burglary, or arson. It would be alike absurd to hold a libertine confessedly guilty of defiling the wife of another without fault when assaulted by the outraged husband while upon or about his premises under cover of darkness seeking an opportunity to repeat the offense. The doctrine advanced in the refused instructions are antagonistic to moral precepts, and fundamental principles of law, both human and divine. 21 Cyc. 809.
Appellant's next insistence is that instructions should embody some proposition of law within the issues, and be definite and clear. Certain instructions given are alleged to be so general as to be misleading and erroneous. The sixth, charged with this vice, reads as follows: “The deceased had the right under the law to protect, by reasonable means, the honor and sanctity of his home from the defendant and all other persons who might seek to bring it into disgrace by having illicit sexual intercourse with the wife of the deceased.” This...
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White v. State
...was some reason to believe that defense counsel had induced it by high pressured and vindictive cross-examination. Duncan v. State (1908), 171 Ind. 444, 86 N.E. 641, simply applied the general rule that striking an admonishing the question and answer and admonishing the jury to disregard it......
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