Heglin v. State, No. 29447

Docket NºNo. 29447
Citation236 Ind. 350, 140 N.E.2d 98
Case DateFebruary 11, 1957
CourtSupreme Court of Indiana

Page 98

140 N.E.2d 98
236 Ind. 350
Roy F. HEGLIN, Jr., Appellant,
v.
STATE of Indiana, Appellee.
No. 29447.
Supreme Court of Indiana.
Feb. 11, 1957.

[236 Ind. 352] Albert H. Gavit, Atty., Gary, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Robert M. O'Mahoney, Deputies Atty. Gen., for appellee.

ARTERBURN, Judge.

Appellant was convicted of an attempted first degree murder. The affidavit upon which the conviction was based reads as follows:

'* * * did then and there unlawfully, feloniously, purposely and with premeditated malice, * * * unlawfully shoot at * * * and thereby wound one Charles Kristute * * * with intent then and there * * * feloniously, purposely, and with premeditated malice, to kill said Charles Kristute, * * *.'

He was found 'guilty as charged.' The shooting was admitted. The defense was

Page 99

that the appellant, a uniformed Brink's guard, while performing his duties guarding a shipment during delivery, shot a stranger, Kristute, in a bank lobby.

This appeal questions the sufficiency of the evidence to sustain the conviction, mainly on the ground that there was no evidence of premeditated malice as charged in the indictment.

There is substantial agreement in the evidence. It shows that one Kristute came into the bank lobby just before closing time. He had been drinking, his mannerism caused some commotion. He moved at a quick pace towards the appellant and another uniformed armed Brink's Express man. This was towards a door not used by customers of the bank, and where a delivery was being made. Appellant, whose back was turned, heard the commotion, turned and saw Kristute approaching within four to six feet. Appellant immediately fired once, hitting Kristute about the hip with a .38 caliber Colt revolver. Kristute, although seriously [236 Ind. 353] injured, was not killed. At the trial Kristute told a story of being in the line of customers of the bank when shot as a result of an unprovoked attack by the appellant. This story was not supported by a single witness, and was so fantastic in some respect that the state in the argument before this court conceded that it was incredible, and should not be accepted as factual for the purposes of this appeal. Otherwise, the evidence coming from spectators in the bank at the time is practically undisputed.

The victim was a stranger, unknown to the appellant, about whom he could have no preconceived plan to kill until he saw him a split second prior to the shooting. Appellant said he believed Kristute was armed, and under the circumstances that he was being attacked by him. He had no time to deliberate, and at the same time had a duty to protect himself and the property he was guarding. Appellant was an expert marksman, trained for his work. We may assume he could have killed Kristute at six feet with one shot. Appellant had the opportunity to continue to shoot until Kristute was dead. Instead he was hit low with one shot. Appellant says he aimed low purposely to avoid killing. A man has a right to act upon appearances of actual and immediate danger, if he sincerely believes such apparent danger exists. The danger need not be actual. It need be only apparent to a reasonable person under the circumstances. The law protects persons who feel compelled to act at such times even though in retrospect it is proved they have erred. The law takes into consideration the surrounding circumstances under...

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24 practice notes
  • Brown v. State, No. 29661
    • United States
    • Indiana Supreme Court of Indiana
    • 17 Diciembre 1958
    ...after the formation of the intent to kill to deliberate thereupon. Barker v. State, Ind.1958, 150 N.E.2d 680; Heglin v. State, 1957, 236 Ind. 350, 140 N.E.2d There is no more reason to say you can eliminate the proof of premeditation in this case than to say you can eliminate the proof of r......
  • Kiefer v. State, No. 29580
    • United States
    • Indiana Supreme Court of Indiana
    • 18 Noviembre 1958
    ...1 Warren on Homicide, § 70, p. 293. See also: Koerner v. State, 1884, 98 Ind. 7, 8-10. This court recently said in Heglin v. State, 1957, 236 Ind. 350, 354, 140 N.E.2d 98, 'Premeditation by its very nature is not instantaneous, but requires some time interval. * * * It is of the very essenc......
  • Hunter v. State, No. 1--976A168
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 Marzo 1977
    ...spoke to mistakes in judgment not being punishable as crimes. Appellants cite as authority for their instruction Heglin v. State (1957), 236 Ind. 350, 140 N.E.2d 98 and Roark, Holcomb v. State (1955), 234 Ind. 615, 130 N.E.2d 326. The Heglin case dealt with premeditation as an element of fi......
  • Nuss v. State, No. 1--874A123
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 Junio 1975
    ...He may use the force he believes necessary even though, by hindsight, it appears that there was no danger at all. Heglin v. State (1957), 236 Ind. 350, 140 N.E.2d 98. The use of a deadly weapon is not as restricted as is set out in the last paragraph of Instruction No. 10. Our Supreme Court......
  • Request a trial to view additional results
24 cases
  • Brown v. State, No. 29661
    • United States
    • Indiana Supreme Court of Indiana
    • 17 Diciembre 1958
    ...after the formation of the intent to kill to deliberate thereupon. Barker v. State, Ind.1958, 150 N.E.2d 680; Heglin v. State, 1957, 236 Ind. 350, 140 N.E.2d There is no more reason to say you can eliminate the proof of premeditation in this case than to say you can eliminate the proof of r......
  • Kiefer v. State, No. 29580
    • United States
    • Indiana Supreme Court of Indiana
    • 18 Noviembre 1958
    ...1 Warren on Homicide, § 70, p. 293. See also: Koerner v. State, 1884, 98 Ind. 7, 8-10. This court recently said in Heglin v. State, 1957, 236 Ind. 350, 354, 140 N.E.2d 98, 'Premeditation by its very nature is not instantaneous, but requires some time interval. * * * It is of the very essenc......
  • Hunter v. State, No. 1--976A168
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 Marzo 1977
    ...spoke to mistakes in judgment not being punishable as crimes. Appellants cite as authority for their instruction Heglin v. State (1957), 236 Ind. 350, 140 N.E.2d 98 and Roark, Holcomb v. State (1955), 234 Ind. 615, 130 N.E.2d 326. The Heglin case dealt with premeditation as an element of fi......
  • Nuss v. State, No. 1--874A123
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 Junio 1975
    ...He may use the force he believes necessary even though, by hindsight, it appears that there was no danger at all. Heglin v. State (1957), 236 Ind. 350, 140 N.E.2d 98. The use of a deadly weapon is not as restricted as is set out in the last paragraph of Instruction No. 10. Our Supreme Court......
  • Request a trial to view additional results

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