French v. State

• Decision Date: 29 April 1980
• Docket Number: No. 779S191,779S191
• Citation: 403 N.E.2d 821,273 Ind. 251
• Parties: William FRENCH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 821

403 N.E.2d 821

273 Ind. 251

William FRENCH, Appellant, v. STATE of Indiana, Appellee.

No. 779S191.

Supreme Court of Indiana.

April 29, 1980.

Nile Stanton, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of Murder in the First Degree, Ind.Code § 35-13-4-1 (Burns 1975), for which he was sentenced to imprisonment for life. This direct appeal presents the following issues:

(1) Whether the trial court erred in refusing defendant's three tendered instructions on self-defense.

(2) Whether the trial court erred in granting the State's "Motion in Limine" regarding the criminal record of the deceased, and in preventing the defendant from inquiring into the reputation of the deceased as to peace and quietude.

(3) Whether there was sufficient evidence of premeditation and malice to sustain the verdict.

ISSUE I

Defendant was convicted over his claim that he acted in self defense. The homicide occurred in the parking lot of a tavern, where the decedent, Wardell Marble, and several other men were drinking and visiting in the late afternoon. The defendant testified that when he approached, Wardell and others were gathered in a circle. Nearby was an 18 or 19 year old youth named Grundy, whom the defendant believed was a cousin to Wardell. Defendant was active in youth programs, thought that Grundy did not belong there and lectured him briefly. Defendant then approached the group and spoke to them. Wardell called him "Finch", and defendant corrected him and started to walk away.

Wardell looked directly at the defendant, while whispering to Grundy, came out of the group and towards defendant. At the same time, the others in the group started to spread out, as if to surround the defendant. As Wardell moved towards the defendant he said, "French, I don't like you no way. I ought to kick * * *."

Defendant knew the members of the group to be "wineheads" and "junkies" and was convinced that they were going to "jump" him. He tried to reason with Wardell, as he continued to back away, but Wardell and the others continued towards him.

Defendant had been target shooting and had a 22 cal. target pistol, which he drew, as he backed away, hoping to deter the attack. Wardell had something in his hand but placed it on top of a parked automobile. He reached into his trouser pocket with his right hand and rushed towards the defendant. Defendant knew that Wardell carried a knife, was in fear of his life and decided to shoot the defendant in the leg. Instead, however, he backed into a parked automobile at that moment, which knocked him off balance, and he accidentally fired high, hitting Wardell in the heart.

Defendant's account of the incident was diametrically opposed to the testimony of the State's witnesses in almost every particular. Nevertheless, it was substantial probative evidence which entitled him to an acquittal, if it raised a reasonable doubt in the minds of the jurors. Accordingly, the defendant was entitled to have the jury properly instructed upon the law of self defense.

The doctrine of lawful self defense has many facets and understandably the matter of instructing juries thereon has been troublesome. Although the precise instruction to which a defendant may be entitled may vary with the circumstances of the case, the general instruction that has been repeatedly approved and is favored by this Court as an embodiment of the pertinent principles is as follows:

"The Court further instructs you that one person may kill another under such circumstances that the homicide or killing constitute no crime, but is justified by the law. This is known as the law or doctrine of self-defense and may be, and is thus stated for your guidance.

"Whoever, being himself without fault and in a place where he has a right to be, so far as his assailant is concerned, is assaulted, he may, without retreating, repel force by force; and he need not believe that his safety requires him to kill his adversary in order to give him a right to make use of force for that purpose. When from the act of his 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 danger or apprehended danger may be exercised by him; and he may use it to any extent which is reasonably necessary, and, if his assailant is killed as a result of the reasonable defense of himself, he is excusable in the eyes of the law. The question of the existence of such danger, the necessity or apparent necessity, as well as the amount of force necessary to employ to resist the attack can only be determined from the standpoint of the defendant at the time and under all the then existing circumstances. Ordinarily one exercising the right to self-defense is required to act upon the instant and without time to deliberate and investigate and under such circumstances a danger which exists only in appearance, is as real and imminent to him as if it were actual.

"A person in the exercise of the right of self-defense must act honestly and conscientiously.

"When all danger and all apparent danger of the loss of life, or of receiving great bodily harm, from the assault of his assailant is at an end and passed, then the right to use force is at an end and should cease. The person exercising the right of self-defense must honestly believe, and have reasonable ground to believe, when he makes use of force to protect himself from an assailant, that at the time he uses the force it is then necessary to do so to protect his life, or to protect his person from great bodily harm.

"One who is in no apparent danger, and who apprehends no danger and who has no reasonable ground for such apprehension cannot kill another and successfully interpose the defense of self-defense." Martin v. State (1973) 260 Ind. 490, 296 N.E.2d 793.

The defendant tendered three brief instructions, all of which were on self-defense and all of which were refused. The court acknowledged that they were correct statements of the law but declined to give them because he regarded the court's preliminary instruction No. 15 and its proposed final instruction No. 29 to be sufficient. Those instructions were as follows:

"COURT'S PRELIMINARY INSTRUCTION NO. 15

"It is the law that one seeking to avail himself of the right of self defense must be himself without fault, and if the evidence shows beyond a reasonable doubt that a defendant himself provoked the attack or brought upon himself the necessity which he sets up in his own defense, or voluntarily put himself in the way of an altercation, or sought a conflict, he is thereby deprived of the right of self defense unless he in good faith made an effort to retreat or abandon the conflict in some manner."

"COURT'S FINAL INSTRUCTION NO. 29

"A person is justified in using reasonable force against another person to protect himself or a third person from what he reasonably believes to be the imminent use of unlawful force. However a person is justified in using deadly force only if he reasonably believes that that force is necessary to prevent serious bodily injury to himself or a third person in the commission of a forcible felony."

We will not set forth the defendant's requested instructions, as we do not regard them as models. We find, however, that the court's instructions were deficient in at least five particulars included in our preferred instructions and in at least three particulars covered by those tendered and refused. To the extent that the court's instructions fell short of our preferred one and the deficiencies were not supplied by the tendered instructions, the defendant has no cause to complain. A failure to instruct is not subject to appellate review unless a proper request has been made; and, error cannot be addressed to a correct but incomplete instruction, if instructions have not been requested upon the omitted points. Flowers v. State (1957) 236 Ind. 151, 168, 139 N.E.2d 185; Wilson v. State (1953) 232 Ind. 365, 367, 111 N.E.2d 709. However, three principles included in our preferred instruction but omitted from the court's instructions were embodied in the instructions tendered.

We do not regard the omission, in this case, of the proviso that one claiming the right to defend himself must be in a place where he has a right to be as error, because we do not see how the defendant could have been thereby harmed....