Heglin v. State, 29447

Citation236 Ind. 350,140 N.E.2d 98
Decision Date11 February 1957
Docket NumberNo. 29447,29447
PartiesRoy F. HEGLIN, Jr., Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

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 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 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 which the events took place. Hughes v. State, 1937, 212 Ind. 577, 10 N.E.2d 629; Brannin v. State, 1943, 221 Ind. 123, 46 N.E.2d 599; West v. State, 1877. 59 Ind. 113; Hicks v. State, 1875, 21 Ind. 407.

The circumstances here were not commonplace such as that of an average person meeting another one on the street or in the home. Here, the atmosphere in the bank was charged with some tension while the appellant was acting as a guard over large sums of money and other valuables. The victim Kristute was moving about in a highly unorthodox manner. The law does not use hindsight as a measure of reasonable conduct under circumstances such as these. Flick v. State, 1935, 207 Ind. 483, 193 N.E. 603; 26 Am.Jur., Homicide, § 138, p. 251; 40 C.J.S., Homicide, § 125, p. 1001.

This is not the case of a criminal who arms himself, and goes out to commit a crime with a premeditated intent to kill in general whomever interferes with his plans or designs. Here there was very little, if any, time lag or interval between the intent, if any, to kill and the act of shooting. If there was any premeditated malice motivating the shooting in this case, it had to be formed and deliberated upon in the instant the gun was aimed and fired. The state contends that premeditated malice in law involves no appreciable time element. Although this may be technically the law, and a possibility, it is not a probability or reasonable inference to be drawn without facts to support it. Premeditation by its very nature is not instantaneous, but requires some time interval. It follows that the shorter the time interval between the evidence of any intent to kill and the killing, the less time there is for premeditation and a deliberate plan to kill. It is of the very essence of the crime that there should be time and opportunity for deliberation or premeditation after the intent to kill has been formed in the mind. Everett v. State, 1935, 208 Ind. 145, 195 N.E. 77; Aszman v. State, 1890, 123 Ind. 347, 24 N.E. 123, 8 L.R.A. 33; Fahnestock v. State, 1864, 23 Ind. 231; Koerner v. State, 1884, 98 Ind. 7; Lloyd v. State, 1934...

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24 cases
  • Brown v. State, 29661
    • United States
    • Indiana Supreme Court
    • December 17, 1958
    ...elapse 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 98. There is no more reason to say you can eliminate the proof of premeditation in this case than to say you can eliminate the......
  • Nuss v. State, 1--874A123
    • United States
    • Indiana Appellate Court
    • June 5, 1975
    ...688. 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 ......
  • Hunter v. State, 1--976A168
    • United States
    • Indiana Appellate Court
    • March 3, 1977
    ...also 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 ......
  • White v. State, 2--673A142
    • United States
    • Indiana Appellate Court
    • September 26, 1974
    ...v. State (1969), 252 Ind. 379, 248 N.E.2d 348; Myers v. State (1968), 251 Ind. 126, 239 N.E.2d 605, 244 N.E.2d 649; Heglin v. State (1957), 236 Ind. 350, 140 N.E.2d 98. The necessity of proof is no less essential for drug-related offenses than for other offenses. The statutes that provide p......
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