Hedrick v. State
Decision Date | 23 May 1951 |
Docket Number | No. 28707,28707 |
Parties | HEDRICK v. STATE. |
Court | Indiana Supreme Court |
Franklyn George, New Castle, for appellant.
J. Emmett McManamon, Atty. Gen., John Ready O'Connor, George W. Hand, Deputy Attys. Gen., for appellee.
Appellant was indicted under § 10-3401, Burns' 1942 Repl. for murder while attempting to commit robbery; was tried by a jury on his plea of not guilty; and was found guilty as charged and sentenced to the Indiana State Prison for and during his natural life.
Motion for a new trial was seasonably filed and overruled.
The only error assigned is that the court erred in overruling appellant's motion for a new trial.
Because of the nature of the question here involved, we believe it is appropriate to include a short statement of the circumstances surrounding the crime for which appellant was indicted and convicted. Appellant was involved with one Clarence Gorman and Lawrence Anderson in an attempted robbery which resulted in murder. The state attempted to show by certain acts and conversations between appellant and said Gorman and Anderson prior to the commission of the crime, including the act of driving his automobile and taking said Gorman and Anderson to and from the scene of the crime and his presence at its commission, that he (appellant) aided and abetted the perpetration of said crime, thereby making him a principal.
One of the theories of defense presented by appellant was that even though he might have participated in the planning of the robbery, as the state attempted to show, he abandoned his intentions and undertook to withdraw from participation therein in such a manner and under such circumstances as would relieve him from any responsibility for the crime of murder.
Among other things, appellant contends that the trial court erred in refusing to give certain instructions tendered by him covering the substance of his defense of abandonment and withdrawal from the crime, which are tendered instructions numbered 1 and 2.
Tendered instruction No. 1, which is a modification of the court's instruction No. 16, is as follows:
'The Court further instructs you that when two or more persons combine to commit a crime, each is criminally responsible for the acts of his confederates committed in the furtherance of the common design, and in contemplation of law the act of each is the act of all; except, however, that where one who had aided and encouraged its commission may nevertheless before its completion, withdraw all his aid and encouragement and escape criminal liability for the completed crime.'
Tendered instruction No. 2 is as follows:
The record discloses some evidence of abandonment.
Clarence Gorman, a witness for the State, testified, in part, as follows:
(On direct examination).
'Q. Anything else in there that is not true? (Referring to signed statement). A. After we started over there, we started to come back and Anderson and I decided we had gone this far we would go through with the rest of it but Bud (Hedrick) didn't want to he wanted to chicken out, he wanted to go on home.
'Q. But he did go on with you? A. Yes, because he had to.
(On cross examination).
countenance? A. Yes, he was afraid of me, I had a gun too.
'Q. Did he show any fear there? A. Yes, he did.
'Q. What did he (Anderson) say to him? A. He laid the gun across the front seat and said: 'You have come this far, you are going the rest of the way'. So we made him turn around and go to Shirley.
Appellant (defendant) testified on direct examination, in part, as follows:
'Q. Did you have any difficulty with your car? A. I told them my car was not working right and I didn't want to go over there anyhow.
'Q. What happened to your car? A. It started acting up and I stopped and turned around and strated back.
'Q. How far did you go bank? A. About a mile and a half.
'Q. How far were you from Shirley? A. A long ways from Shirley, just a short ways off 67.
'Q. When you turned around and started back, was there any conversation had? A. Gorman was not saying anything but Anderson started protesting immediately.
'Q. What did he say? A. He said he had gone this far he was going all the rest of the way.
'Q. Was that all the conversation? A. No, he was cussing me and said I was a coward and lacked guts and he said: 'By Golly, you are going the rest of the way.'
'Q. Did he say 'By Golly'? A. No sir, he took the name of the Lord in vain.
'Q. Were you afraid? A. Yes.
'Q. Did you protest? A. I told him I was scared, and didn't want to have anything to do with it and I was going back to Indianapolis. He started pounding on the back of the seat and that is when he said 'By Golly, you are going the rest of the way'.
'Q. Did he say 'By God'? A. Yes.
'Q. Did Gorman say anything at that time? A. Gorman said: 'You had better come on Bud, we have gone this far, we had better go on'.
'Q. Were you afraid? A. Yes, I was afraid more by the minute, I didn't have anything to defend myself, so I turned around.
'Q. And you came into Shirley? A. Yes.
'Q. Did you know the way into Shirley? A. They directed which way they wanted me to go.
'Q. You went the way they wanted to go? A. Yes.
'Q. What did you go then? A. Parked the car. I wanted to sit in the car and told them I didn't want to go on up to the house and Gorman or Anderson one said: 'You are not going to stay here and then run off and leave us'. 'You are going to come on and go with us'. I refused to take the tape or handerchief.
Where the substance of an instruction which is refused is covered by one given, such refusal is not reversible error. Koerner v. State, 1884, 98 Ind. 7, 24; Kocher v. State, 1920, 189 Ind. 578, 582, 127 N.E. 3; Beneks v. State, 1935, 208 Ind. 317, 328, 196 N.E. 73; Mandich v. State, 1946, 224 Ind. 209, 215, 66 N.E.2d 69.
Appellee contends that instructions numbered 17, 18, 19 and 20, to the effect that defendant should not be found guilty unless there was proof beyond reasonable doubt that he was acting in concert with Gorman and Anderson in the commission of the crime charged, covered the 'converse of abandonment' and were sufficient to cover the substance of appellant's tendered instructions numbered 1 and 2. We cannot agree with this contention.
Appellee further contends that the court's instructions numbered 21 and 22, which are as follows:
'The question of the existence of such danger can only be determined from the standpoint of the defendant at the time, and under all the evidence, you have a reasonable doubt as to whether the defendant acted under such fear, then your verdict should be for the defendant.
'The duress of compulsion must consist in such force exercised towards the person as put him in present fear of death or great bodily peril.
, were sufficient to 'comprehend and include' the question of abandonment. While these instructions are sufficient to cover the subject of duress, we do not deem them sufficient to cover the substance of appellant's tendered instructions numbered...
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