Feggins v. State

• Decision Date: 25 January 1977
• Docket Number: No. 676A176,676A176
• Parties: Dan FEGGINS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 517

359 N.E.2d 517

265 Ind. 674

Dan FEGGINS, Appellant, v. STATE of Indiana, Appellee.

No. 676A176.

Supreme Court of Indiana.

Jan. 25, 1977.

William G. Smock, Terre Haute, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was convicted of second degree murder, Ind.Code § 35--1--54--1 (Burns 1975) after trial by jury. He appeals, raising the following issues:

(1) Sufficiency of the evidence;

(2) alleged error in the giving of an instruction concerning the jury's duty;

(3) alleged error in the trial judge's mentioning the possibility of parole during voir dire.

John D. Beckles, known as 'Trinidad,' occupied a house in Terre Haute in which he operated a gambling establishment. In the morning of September 27, 1975, several persons were in this house gambling on dice. The appellant and decedent Walter Barnett were gambling together; appellant was winning from Barnett. Some words were exchanged between the men, and Barnett lunged at appellant with a Barlow pocket knife with a three and seven-eighths inch blade. Barnett struck at appellant twice, while the latter was either kneeling or lying on the floor. One of the blows caused a small cut to appellant's chest over his heart. into the room and interposed himself between appellant and Barnett, telling Barnett to leave. Barnett backed away from Beckles, out into the kitchen and to the back door. He kept the knife in his hand. Barnett stopped on the steps outside the back door. He still faced Beckles who stood in the doorway. Beckles carried a Smith & Wesson .45 caliber revolver in his rear pants pocket. Appellant seized the gun and shot at Barnett. None of the witnesses saw what happened immediately after the first shot, but most heard two more shots fired. Soon thereafter some of the witnesses saw Walter Barnett lying in the intersection of Twenty-Second and Chase Streets, upon one corner of which Beckles' house is located. Several witnesses saw appellant kick Barnett's head and strike it with the revolver. Carolyn Winston, who had accompanied Barnett to the house that night, went out to him. Barnett was breathing when she reached him but stopped breathing as she stood with him.

Officer Larry Trueblood of the Terre Haute Police Department was the first policeman to arrive. He found Barnett lying in the street. Barnett had no pulse the officer could detect. Barnett had suffered bullet wounds to the chest and right lower leg. Officer Trueblood found Barnett's knife lying closed on the ground.

Barnett was pronounced dead by the coroner. An autopsy revealed that the bullet which entered his chest had nicked his aorta, causing death by internal bleeding. Appellant was taken to the hospital where his cut was cleaned.

Appellant gave a written statement after advice and waiver of rights. He admitted shooting Barnett, who he claimed was trying to attack him with the knife. The witnesses who could see Barnett as he stood on the back steps did not seen him attack or lunge at appellant.

I

Appellant argues that the evidence was insufficient to show the elements of second degree murder and to disprove his contention that he acted in self-defense. We are required to repeat that in reviewing the sufficiency of the evidence we do not weigh the evidence or judge credibility. Looking to the evidence which supports the verdict and reasonable inferences therefrom, we determine whether there is evidence of probative value from which the trier of fact could reasonably find the existence of each element of the offense. Horton v. State, (1976) Ind., 354 N.E.2d 242.

Second degree murder is defined in Ind.Code § 35--1--54--1, which provides:

'Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree . . ..'

Thus the State must prove that appellant (1) killed a human being, (2) purposely, and (3) with malice. Appellant contends that the element of malice was not proven.

This Court has previously defined malice ¹ thus:

'An act is done with malice when it is done with 'any evil design in general.' In homicide, a purposeful killing is done with malice if it is done neither in self-defense nor in the heat of passion induced by sufficient provocation.' Shackleford v. State, (1976) Ind., 349 N.E.2d 150, 154; McKinstry v. State, (1975) Ind., 338 N.E.2d 636, 640.

The often stated rule that malice may be inferred from the intentional use of a deadly weapon in a manner likely to cause death or great bodily harm, White v. State, (1976) Ind., 349 N.E.2d 156, 160, is merely an alternative phrasing of the same rule. Therefore the verdict will stand if there is evidence from which the jury could reasonably conclude that when appellant shot Walter Barnett, ² he acted neither in self-defense nor in the heat of passion induced by sufficient provocation.

Appellant relies on Dickens v. State, (1973) 260 Ind. 284, 295 N.E.2d 613, to support his position that appellant acted in a sudden heat. In Dickens the defendant shot her husband during an episode of unprovoked violence by the husband. The deceased had been drinking and taking various medications. He suddenly threw a jar of instant coffee at his wife, then smashed a chair. He slammed a friend into a cabinet. The defendant had picked up her husband's pistol in order to prevent him from using it. When the defendant went back to the room in which she had left her husband, he advanced upon her, and she shot him.

We held that fear, when such as to render the defendant incapable of cool reflection, may be such a state of 'passion' as will preclude malice. We found the evidence in Dickens to be such that the defendant in that case was incapable of forming malice. Appellant urges that the case at bar is analogous to Dickens: Barnett was drinking and behaving irrationally; he attacked appellant and wounded him. Barnett was also known as a violent man. He had previously been convicted of armed robbery and rape.

There was certainly provation which could have aroused both fear and anger in appellant. However, the jury could reasonably have found that such provication was not sufficient to preclude the formation of malice, or that any passion thus induced had subsided. Unlike the defendant in Dickens, appellant shot Barnett some time after the decedent's unprovoked violence had ceased. Moreover, in Dickens, it was the defendant's husband who committed the irrational and unprovoked violence; the fact that it was the defendant's spouse engaging in such behavior could reasonably be expected to compound the mental distress to which she was subject. We find that there was sufficient evidence of malice.

Appellant also alleges that he acted in self-defense, setting out the elements of self-defense, and applying each to himself. His discussion presupposes that the jury was required to believe the version of the facts given by appellant in his statement: that appellant shot Barnett while Barnett was trying to stab him. However, there was ample evidence from which the jury could have believed that appellant shot at Barnett while the latter was merely standing in the doorway; that appellant pursued Barnett from the doorway shooting at him; and that when Barnett fell the appellant struck and kicked him. There is therefore no requirement that we discuss the law of self-defense, for under the evidence most favorable to the jury's verdict there is no genuine issue of self-defense.

II

The trial court gave the following final instruction to the jury:

'I submit this case to you with the confidence that you will faithfully discharge the grave duty resting upon you bearing in mind that the liberty of the accused is not to be trifled away nor taken by careless or inconsiderate judgment; but if after a careful consideration of the law and the evidence in the case you are satisfied beyond a reasonable doubt that the defendant, Dan Feggins, is guilty, you should return your verdict accordingly. You must be just to the defendant and equally just to the State. As manly, upright men and woman charged with the responsible duty of assisting the Court in the administration of justice, you will put aside all sympathy and sentiment and look steadfastly and alone to the law and the evidence in the case and return into court such a verdict as it (sic) warranted thereby.'

Appellant objected to this instruction and argues that it contravenes the provision of the Indiana Constitution that in all criminal cases 'the jury shall have the right to determine the law and facts.' Art. 1, § 19. As authority for this proposition, appellant cites Burris v. State, (1941) 218 Ind. 601, 34 N.E.2d 928. In Burris we noted that this section

'has never been construed as restricting the power of a trial court to declare the law to a jury, but it has been said in numerous cases that this must not be done in a manner calculated to bind the consciences of the jurors or restrict them in their right under the Constitution to determine the law for themselves.' 218 Ind. at 604, 34 N.E.2d 929.

We then held that the giving of an instruction charging the jurors that, while they were judges of the law as well as of the facts, they should weigh the court's instructions as they weigh the evidence 'and disregard neither without proper reason' was error.

In Beavers v. State, (1957) 236 Ind. 549, 141 N.E.2d 118, we considered Art. 1, § 19, in considerable depth, examining its history and the development of this area of the law in other jurisdictions. The jurors in that case were instructed that they may not arbitrarily disregard the law; that it is their duty to determine the law as it is. We held that our Constitution confers upon the jury the power to disregard the court's instructions, but that the jury's duty was to consider those instructions and not to disregard them lightly. The Beavers court's instruction was therefore correct.

Since...