Flick v. State

• Decision Date: 09 January 1935
• Docket Number: 26278
• Citation: 193 N.E. 603,207 Ind. 473
• Parties: FLICK v. STATE
• Court: Indiana Supreme Court

193 N.E. 603

207 Ind. 473

FLICK v. STATE

No. 26278

Supreme Court of Indiana

January 9, 1935

Appeal from Wells Circuit Court; John F. Decker, Judge.

Willis Flick was convicted of assault and battery with intent to kill and murder, and he appeals.

Reversed with instructions to trial court to grant new trial.

Simmons & Simmons, of Hartford City, for appellant.

Philip Lutz, Jr., Atty. Gen., and William E. Bussell, Deputy Atty Gen., for the State.

OPINION

ROLL, Judge.

This is a criminal action by the state of Indiana against appellant, Willis Flick, charging him with the crime of assault and battery with intent to kill and murder, and is based on section 2417, Burns' Ann. St. Supp. 1929 (Acts 1927, p. 580, c. 203, § 2).

Appellant was charged by affidavit in one count to which he filed a motion to quash which was overruled by the court. Appellant waived arraignment and entered a plea of not guilty. There was a trial by jury and a verdict of assault and battery with intent to commit murder in the second degree.

Appellant filed a motion for a new trial, which was overruled with proper exceptions reserved. Judgment was rendered on the verdict in accordance with the statute, and this appeal was duly perfected.

Two errors are assigned by appellant in this court: (1) The overruling of his motion to quash; and (2) the overruling of his motion for a new trial.

Appellant in his brief does not argue the first assigned error, but relies wholly upon the second.

Appellant in his motion for a new trial assigns as a reason therefor the giving by the court of its own motion instruction numbered 7 3/8 and the refusal to give instructions numbered 7, 11, 46, and 51 submitted by appellant. Instruction No. 7 3/8, of which appellant complains, reads as follows:

'The Court instructs the jury that a person being in a place where he has right to be and being without fault is violently assaulted by another with his fist under such circumstances that he has reasonable cause to believe and does believe that he is in danger of great bodily harm or of losing his life, then such person so assaulted may without retreating repel force by force as may seem to him reasonably necessary to protect his life or prevent his assailant from inflicting great bodily harm, and if while exercising such right the assailant is killed, the defendant is justified. And under such circumstances if the person assaulted has a reasonable belief that it was necessary in repelling such assault to use a deadly weapon he may do so if he acts honestly and reasonably believes such force necessary to repel such assault.

'And it is for you to determine from all the facts and circumstances in this cause, whether the defendant at the time he inflicted the injury upon Lester F. Crisamore, reasonably believed it was necessary for him to inflict said injury in order to avoid great bodily harm or death to himself.'

Appellant complains of the latter part of this instruction for the reason it informed the jury that the defendant must have had a reasonable belief that it was necessary for him to inflict said injuries in order to avoid great bodily harm before he can avail himself of the law of self-defense. The question thus presented has received the consideration of this court in several cases. Thus, in the case of Hicks v. State (1875) 51 Ind. 407, the following instruction was given to the jury: 'The jury should find in behalf of the defendant, should they first find, beyond a reasonable doubt, from the evidence, that Moses Kinney was killed by the use of a deadly weapon, at the hands of one of the defendants; that the killing was done at a time when the defendant believed, and had reasonable cause to believe, that by the homicide alone could her own safety be secured.'

It was there argued that the instruction was erroneous because it stated, in effect, that the defendant had no right to defend herself unless, at the time, she believed it could only be done by the homicide of the deceased. The court in discussing the question made a very clear statement of the law on self-defense in the following words: 'The theory of self-defense is, that the party assailed has the right to repel force by force, and he need not believe that his safety requires him to kill his adversary in order to give him the right to make use of force for that purpose. When his life is in danger, or he is in danger of great bodily harm, or when, from the acts of the assailant, he believes, and has reasonable ground to believe, that he is in danger of losing his life or receiving great bodily harm from his adversary, the right to defend himself from such...