Green v. State

Citation438 N.E.2d 266
Decision Date06 August 1982
Docket NumberNo. 881S203,881S203
PartiesJohn GREEN, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Forrest Bowman, Jr., Bowman, Dillon & Wagoner, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged with Murder. He was tried before a jury and convicted. He was sentenced to a thirty (30) year term of imprisonment.

The facts are these. Throughout Christmas Eve and the early hours of Christmas morning in 1979, a number of people gathered at the home of one Lucy Hayes in Indianapolis. The decedent, Perry Green, had arrived at about 6:00 p. m. on Christmas Eve. Appellant, Perry Green's brother, arrived at around 2:00 a. m. on Christmas morning.

After appellant arrived, he and the decedent began arguing about family matters. Appellant was carrying a handgun that belonged to the decedent. At one point appellant told some of the others present he was going to shoot his brother if he didn't quit bothering him.

There was evidence presented the decedent threatened appellant also. Appellant testified decedent had a long history of becoming violent when he was drunk. Evidence also showed the decedent had consumed a great deal of alcohol during the evening. The toxicology report showed at the time of his death he had an amount of alcohol equivalent to twelve drinks in his bloodstream. Shortly before 2:30 a. m. the decedent telephoned police and reported appellant was going to kill him. Immediately thereafter appellant was seated on a couch in the dining room. The decedent, who was unarmed, continued the argument and was threatening to do harm to appellant. At the same time he was walking slowly toward the couch. Appellant warned the decedent not to get any closer to him. When the decedent was standing over appellant seated on the couch, appellant removed the gun from his waistband and fired one shot at point blank range into the decedent's chest, killing him. Appellant testified, contrary to all other witnesses, that the gun discharged when he tossed it to the decedent and the latter caught it in his hand.

Appellant claims the trial court erred in overruling his objection to Instruction 9C, which reads as follows:

"A person is entitled to defend himself without criminal responsibility for his act under circumstances where it reasonably appears to him that he is in danger of attack or bodily harm.

It is not necessary that a person be violently assaulted, or assaulted at all, before he has a right to defend himself. A person has a right to act on appearance, and if he believes in good faith, and upon reasonable grounds, from the facts and circumstances as they appear to him at the time, that he is about to be assaulted, he has a right, if it seems reasonably necessary to him at the time, to use such force as will protect him from the assault.

In the exercise of self-defense the party assaulted must, so far as his assailant is concerned, be in a place where he has a right to be, and act immediately, without fault, and without time to deliberate and investigate the circumstances."

Appellant contends this instruction is erroneous because of the implication in the third paragraph that self-defense is only available where the party assaulted acts immediately and lacks time to deliberate and investigate the circumstances. Appellant contends there is no case law requiring such conditions for the proper exercise of self-defense. He further argues the giving of such an instruction was prejudicial because there was ample evidence the decedent was threatening to do harm to him and caused him to reasonably believe harm was imminent. The giving of the instruction, he concludes, may have led the jury to believe the ongoing contact and argument between he and the decedent precluded his use of self-defense because it gave him time to deliberate and investigate the circumstances and determine the necessity of defending himself.

The language of the instruction comes from the case of Degenias v. State, (1979) Ind.App., 386 N.E.2d 1230. In that case the Court of Appeals upheld a challenge to an instruction given in which the following sentence appeared: " 'In the exercise of self-defense the party assaulted ordinarily is required to act immediately, without time to deliberate and investigate.' " (Emphasis added.) Id., 386 N.E.2d at 1231.

Appellant stresses that the use of the word "ordinarily" in the Degenias case clearly implies there are times when a party assaulted may validly exercise his right of self-defense even though he does have time to deliberate. Appellant is undoubtedly correct in such an interpretation of the law. However, Instruction 9C states the law of self-defense in the situation where a person believes in good faith upon reasonable grounds that he is about to be attacked, even though that assumption might be erroneous. In such a case the law is clear that he must act immediately without fault and without discovering that he is in error concerning the impending attack. Of course, in such a situation if he does, in fact, discover or the exercise of reasonable care would discover that he was not, in fact, in danger then he would not be entitled to invoke self-defense. Instructions are to be read as a whole and in reference to each other.

In the case at bar other instructions on the law of self-defense were given, including Defendant's Instruction No. 7:

"In considering whether or not the defendant reasonably and honestly believed from the action and conduct of the deceased at the time of the encounter and prior thereto, and from the surrounding...

To continue reading

Request your trial
8 cases
  • Gregory v. State
    • United States
    • Indiana Appellate Court
    • December 14, 1983
    ...Ind.App. 60, 354 N.E.2d 755. Thus, to disprove laches, it is only necessary to disprove one of these crucial elements. Cf. Green v. State, (1982) Ind., 438 N.E.2d 266 (burden of disproving self-defense only requires the State to disprove one element of the defense). The majority, however, w......
  • Leming v. State
    • United States
    • Indiana Appellate Court
    • January 22, 1986
    ...Once a claim of self-defense is raised, the State bears the burden of disproving the existence of one of these elements. Green v. State (1982), Ind., 438 N.E.2d 266, 269. This burden is met on appeal if the evidence is sufficient to support a finding beyond a reasonable doubt that a reasona......
  • Smith v. State
    • United States
    • Indiana Supreme Court
    • February 8, 1984
    ...The State is correct in noting that instructions are to be considered as a whole and in reference to each other. Green v. State, (1982) Ind., 438 N.E.2d 266, 268. In the case at bar, the trial court read, as part of the instructions, the charging Information with the added statement that th......
  • Bockting v. State
    • United States
    • Indiana Appellate Court
    • May 11, 1992
    ...the issue of self-defense the State bears the burden of disproving the existence of one of the elements of self-defense. Green v. State (1982), Ind., 438 N.E.2d 266. Among the ways this burden can be met is to present evidence sufficient to convince a reasonable juror beyond a reasonable do......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT