Farley v. State

• Decision Date: 16 October 1962
• Docket Number: No. 30154,30154
• Citation: 243 Ind. 445,185 N.E.2d 414
• Parties: James FARLEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 414

185 N.E.2d 414

243 Ind. 445

James FARLEY, Appellant, v. STATE of Indiana, Appellee.

No. 30154.

Supreme Court of Indiana.

Oct. 16, 1962.

Rehearing Denied Dec. 18, 1962.

Richard M. Orr, Money, Orr & Bridwell, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., of Indiana, William D. Ruckelshaus, Asst. Atty. Gen., Indianapolis, for appellee.

ACHOR, Judge.

Appellant was tried and convicted of murder in the first degree in the Marion Criminal Court, Division One. The basic facts in the case are as follows:

On the evening of December 24, 1959, appellant came to the home of the decedent and asked decedent's wife to go with him to the home of the latter to get some Christmas presents for the children of decedent and his wife. The decedent refused to allow his wife to go with appellant. An argument ensued, whereupon appellant and decedent walked into the back yard followed by decedent's son, Charles Davis. Appellant got in his car which was parked at the rear of the house, told decedent to wait until he came back, and drove away. He drove down the alley, stopped, took a 22 caliber pistol from the trunk of the car and laid it beside him on the front seat. He then drove back to the rear of decedent's house.

Decedent in the meantime had gone into the house and was leaving by the back door to go after some coal. Appellant and decedent met and renewed their altercation. Appellant pulled the gun from his pocket whereupon decedent grabbed his hand. A tussle followed during which three shots were fired. Charles Davis [decedent's son], who had witnessed the incident from the back door, ran into the house to get his mother. When they returned, decedent was lying at the back steps. Appellant then came up to him, kicked him and said, 'die like a dog.'

Following the shooting, appellant threw his gun into Fall Creek, from which it was not recovered. Another gun was found near the body of decedent from which two shots had been fired.

As grounds for appeal, appellant asserts first, that the verdict was not sustained by sufficient evidence. Specifically, he asserts (a) that the shooting was not with premeditation or with malice, which elements are essential to a conviction for first degree murder; and (b) that the shot which he fired and presumably caused the death of the decedent was fired in self defense.

Appellant's conduct in leaving decedent's home, getting a gun and returning to decedent's home, for no explainable reason other than to continue their controversy, fortified by a gun, with which he in fact killed the decedent, is conduct sufficient in itself from which reasonable men might infer premeditation and malice aforethought.

Appellant contends that decedent fired the first shot and that, under the circumstances, he shot the deceased in self defense. The jury was not bound by this testimony but, if believed, it did not necessarily transform appellant's assault upon the decedent into an act of self defense. Decedent had a right to resist appellant's invasion of his person and property with such force as was necessary. Flick v. State (1935), 207 Ind. 473, 193 N.E. 603; Page v. The State (1895), 141 Ind. 236, 40 N.E. 745; Plummer v. The State (1893), 135 Ind. 308, 34 N.E. 968; Miller v. The State (1881), 74 Ind. 1. It is ludicrous to contend that, as a matter of law, a trespasser who draws a gun upon a person, on the latter's own premises, is acting in self defense, merely because the latter resists his invasion in like manner.

Next, appellant asserts as error the fact that the trial court did not require a police officer to submit into evidence a written statement of events obtained by the officer from Charles Davis, son of the decedent, he being the only witness to the shooting other than the appellant. It is not clear from the record that the statement was either written by the witness or signed by him.

This court had a comparable question before it in the case of Anderson v. State (1959), 239 Ind. 372, 376, 156 N.E.2d 384, 386. In that case this court held that police reports in the files of the prosecuting attorney could not be ordered produced for examination by the defendant unless 'it is first shown that such statements are in direct conflict with the testimony of the witness in open court and that such prior statements would prove the innocence of the accused. * * *' If police officers cannot be required to produce statements procured by them in the course of their investigation, except under the circumstances above recited, there is less reason why such statements should be produced in evidence during the trial.

In the case at bar the court permitted the appellant to interrogate the officer at length regarding the contents of the written statement sought to be introduced. There was no evidence from any witness that the prior statement made by the witness differed from his testimony given in open court or that such...