Gunn v. State, No. 2-1075A262
| Docket Nº | No. 2-1075A262 |
| Citation | 365 N.E.2d 1234, 174 Ind.App. 26 |
| Case Date | August 03, 1977 |
| Court | Court of Appeals of Indiana |
Page 1234
v.
STATE of Indiana, Appellee (Plaintiff).
Page 1236
Frank E. Spencer, Indianapolis, A. S. Woolbert, Anderson, for appellant.
[174 Ind.App. 27] Theo. L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.
ROBERTSON, Chief Judge.
James Gunn, Jr. (Gunn) was charged by indictment with murder in the first degree. The jury returned a verdict of guilty of involuntary manslaughter, and he was sentenced to the custody of the Indiana Department of Corrections for a term of one to ten years. Following the overruling of his motion to correct errors, he perfected this appeal.
We reverse and remand for a new trial.
The evidence describing the events of the early morning of Friday, November 3, 1973, is generally uncontradicted.
Soon after Gunn met Henrietta Jackson (Jackson) in April, 1973, they were in love. Three weeks before the homicide, they broke up when Jackson accused Gunn of having another girlfriend. After two weeks, however, they were back together. On November 2, 1973, while Gunn was at the El Morroco Bar, Jackson came in and tried to give Gunn the keys to the 1967 Cadillac (a gift he had bought for her) to take her for a drive. When Gunn told her to keep them, she became angry. Ragland, who had been sitting with Gunn when she came in, heard her remark that "He was going to make her hurt him." Gunn became frightened when he saw her holding her .25 automatic. He previously had tried to persuade her to get rid of it. He left the table to collect himself, and to let her cool down. He then returned and made a date to meet her later at the Oasis Bar.
About midnight, Gunn went to the Oasis. When Jackson arrived at about 12:45 A.M., she walked past Gunn and his friends as if she was angry, and sat at a booth where Gunn joined her. Several witnesses heard her swearing, though no one heard Gunn raise his voice. Later, when Gunn was returning to their table from the restroom, he stopped to talk with friends. He returned to Jackson, who was again angry because he had been talking with some girls. Finally, looking disgusted, Gunn got up from their booth and left. Jackson followed him out the door. She wanted to talk, so they drove in his car to her home. Gunn testified:
[174 Ind.App. 28] "A. When we get down there she started just really arguing, real fearse (sic) . . . So I told her that is it, I'm through, I can't take anymore,
Page 1237
I'm through with you, you know. I said I'll take you back up and you get your car, cause I don't want to have no more arguments, I'm tired of arguing."Across the street from the Oasis, she got out of his car. She asked if this was really it. Then Gunn saw the gun in her right hand. He slid across the passenger side and got out. He told her to give him the gun, which she did. He took the clip out and emptied the bullets into his pocket. She reached into her purse, then pulled out another bullet, which he requested she also turn over, and she complied.
A. Then she asked me where I was going and I told her I was going to park and go back in the Oasis. She said not with her gun, she was taking her gun back.
Q. What did you say?
A. I told her no, she wasn't going to have it.
Q. What did she do?
A. I still had it my right hand, she grabbed my right hand and we scuffled for it. Upon the sidewalk after we got up on the gravel she just gave one big lunge, I felt it when the gun hit on her neck.
Q. What happened?
A. It went off.
Gunn testified that he was shocked and afraid and thought of suicide, so he threw the gun down. He drove to meet his brother, and they decided he should turn himself in to the police.
After being advised of his Miranda rights and signing a waiver form, he told the Anderson police officers that he accidentally shot Jackson. A detective of the Anderson Police Department, a witness for the State, testified that Gunn also said that Jackson pulled a knife on him. When Gunn asked if a knife was found, he was told that a knife was buried under other articles in her purse. Gunn testified that when she reached into her purse before the scuffle over the gun, he thought she reached for her knife and he [174 Ind.App. 29] was frightened. He knew she always carried the knife, and he had seen her use it on the brother of an ex-boyfriend shortly after they met.
The State presented one witness who testified that he had glanced from a distance, while walking by, and had seen that two people with their backs to him were having a little scuffle. Patrons at the Oasis rushed outside after the shot was fired, and saw Jackson lying on the gravel parking lot about fifty feet from the Oasis.
Jackson's clothing was not torn, and there were no signs of external force on her person except the bullet wound. Gunn had some slight scratches on his hands and forearms. One shell casing was found on the ground at the scene, but the gun was never found.
Gunn contends that the trial court committed reversible error by refusing to admit into evidence Defendant's exhibit 1 2 which supported a theory of self-defense. The court found this defense to be inconsistent with the theory, also put forth by Gunn, that the gun discharged accidentally.
We agree with Gunn that the trial court erred when it refused to allow him the opportunity to pursue a theory of self-defense and to submit relevant supporting evidence and that the existence of facts to
Page 1238
support a finding of self-defense is to be decided by the jury.Gunn was permitted to initiate an evidentiary presentation of his accident defense. In general, a homicide may be completely excusable when it is the result of accident or misadventure. 40 [174 Ind.App. 30] Am.Jur.2d Homicide §§ 110, 112 (1968); 1 Wharton's Criminal Law and Procedure, §§ 211, 212, pp. 463, 464 (1957). Although this defense is recognized in Indiana, Butler v. State (1967), 249 Ind. 484, 229 N.E.2d 471; Fausett v. State (1942), 219 Ind. 500, 39 N.E.2d 728; Lloyd v. State (1934), 206 Ind. 359, 189 N.E. 406; Weston v. State (1906), 167 Ind. 324, 78 N.E. 1014; Potter v. State (1904), 162 Ind. 213, 70 N.E. 129, we find no Indiana cases which explicitly treat the accident or misadventure defense theory.
From a review of decisions in Indiana and other jurisdictions, we determine that the defense of homicide by accident or misadventure includes three elements:
1. The killing must be unintentional, or without unlawful intent or evil design on the part of the accused,
2. the act resulting in death must not be an unlawful act,
3. nor an act done recklessly, carelessly or in wanton disregard of the consequences.
Commonwealth v. Pavillard (1966), 421 Pa. 571, 220 A.2d 807; McDermott v. State (1883), 89 Ind. 187; Valentine v. Commonwealth (1948), 187 Va. 946, 48 S.E.2d 264; Butler v. State, supra ; Fausett v. State, supra ; Lloyd v. State, supra ; Potter v. State, supra ; State v. Johnson (1967), 277 Minn. 368, 152 N.W.2d 529; Mundy v. Commonwealth (1926), 144 Va. 609, 131 S.E. 242; Annot., 63 A.L.R.3d 936, 945 (1975).
Although proof of the first element of the accident defense will avert a finding of murder or voluntary manslaughter, it will not avoid a conviction for involuntary manslaughter. However, the second two elements of the defense may rebut the State's proof, if any, of the unlawful act element of the crime of involuntary manslaughter. The manslaughter statute, IC 1971, 35-13-4-2 (Burns Code Ed.), in pertinent part, provides.
"Involuntary Manslaughter. Whoever kills any human being without malice, express or implied, involuntarily but in the commission of some unlawful act, is guilty of involuntary manslaughter . . . ."
[174 Ind.App. 31] The State bears the burden of proving that the accused purposely committed an unlawful act which was the proximate cause of the death. German v. State (1975), Ind.App., 337 N.E.2d 883; Demmond v. State (1975), Ind.App., 333 N.E.2d 922; Potter v. State, supra ; Annot., 55 A.L.R. 921 (1928).
The unlawful act the State charges Gunn committed was that Gunn intentionally drew Jackson's gun in violation of IC 1971, 35-1-79-1 (Burns Code Ed.):
"Drawing dangerous weapons. Whoever draws, or threatens to use, any . . . gun, . . . or other deadly or...
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People v. Curtis, No. E012534
...homicide in the exercise of self-defense. (Koritta v. State (1994) 263 Ga. 703, 703-705, 438 S.E.2d 68, 68-70; Gunn v. State (1977) 174 Ind.App. 26, 29-33, 365 N.E.2d 1234, 1237-1239.) The defendant would be entitled to jury instructions on both self-defense and accident. (Koritta v. State,......
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State v. Leidholm, Cr. N
...denied 444 U.S. 843, 100 S.Ct. 85, 62 L.Ed.2d 55 (1979); People v. Kelly, 24 Ill.App.3d 1018, 322 N.E.2d 527 (1975); Gunn v. State, 174 Ind.App. 26, 365 N.E.2d 1234 (1977); Wanrow, supra, 559 P.2d at 558-559; Kelly, supra, 655 P.2d at 1203; Adams, supra, 641 P.2d at 1209; Painter, supra, 62......
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State v. Watkins, No. 00-0064-CR.
...jurisdictions, and other sources, for the proposition that self-defense and accident are not necessarily inconsistent. In Gunn v. State, 365 N.E.2d 1234, 1239 (Ind. Ct. App. 1977), the court stated that "[B]ecause the proper exercise of the right to defend oneself is a lawful act, such an a......
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State v. Burriss, No. 24903.
...v. People, 58 Colo. 175, 143 P. 1092 334 S.C. 261 (1914) (en banc); State v. Phillips, 37 Del. 544, 187 A. 108 (1936); Gunn v. State, 174 Ind.App. 26, 365 N.E.2d 1234 (1977); State v. Crowley, 345 Mo. 1177, 139 S.W.2d 473 (1940) (accident charge warranted where defendant testified he drew a......
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People v. Curtis, No. E012534
...homicide in the exercise of self-defense. (Koritta v. State (1994) 263 Ga. 703, 703-705, 438 S.E.2d 68, 68-70; Gunn v. State (1977) 174 Ind.App. 26, 29-33, 365 N.E.2d 1234, 1237-1239.) The defendant would be entitled to jury instructions on both self-defense and accident. (Koritta v. State,......
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State v. Leidholm, Cr. N
...denied 444 U.S. 843, 100 S.Ct. 85, 62 L.Ed.2d 55 (1979); People v. Kelly, 24 Ill.App.3d 1018, 322 N.E.2d 527 (1975); Gunn v. State, 174 Ind.App. 26, 365 N.E.2d 1234 (1977); Wanrow, supra, 559 P.2d at 558-559; Kelly, supra, 655 P.2d at 1203; Adams, supra, 641 P.2d at 1209; Painter, supra, 62......
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State v. Watkins, No. 00-0064-CR.
...jurisdictions, and other sources, for the proposition that self-defense and accident are not necessarily inconsistent. In Gunn v. State, 365 N.E.2d 1234, 1239 (Ind. Ct. App. 1977), the court stated that "[B]ecause the proper exercise of the right to defend oneself is a lawful act, such an a......
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State v. Burriss, No. 24903.
...v. People, 58 Colo. 175, 143 P. 1092 334 S.C. 261 (1914) (en banc); State v. Phillips, 37 Del. 544, 187 A. 108 (1936); Gunn v. State, 174 Ind.App. 26, 365 N.E.2d 1234 (1977); State v. Crowley, 345 Mo. 1177, 139 S.W.2d 473 (1940) (accident charge warranted where defendant testified he drew a......