Johnson v. State, No. 770S172

Docket NºNo. 770S172
Citation26 Ind.Dec. 248, 256 Ind. 579, 271 N.E.2d 123
Case DateJuly 08, 1971
CourtSupreme Court of Indiana

Page 123

271 N.E.2d 123
256 Ind. 579
Johnnie Ernest JOHNSON, Appellant,
v.
STATE of Indiana, Appellee.
No. 770S172.
Supreme Court of Indiana.
July 8, 1971.

[256 Ind. 580] Al S. Woolbert, Anderson, Frank E. Spencer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., J. Frank Hanley, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

Appellant was charged by indictment with the offense of involuntary manslaughter. Upon a plea of not guilty, appellant was tried in the Madison County Circuit Court before a jury and found guilty of simple assault. Pursuant to such verdict appellant was fined two hundred fifty dollars ($250) and sentenced to imprisonment in the Madison County Jail for a period of ninety (90) days.

There were several eye-witnesses to the alleged offense and the facts surrounding the incident are substantially without conflict. On April 6, 1968, sometime between 11:30 and 12:00 A.M., Clifford Moore entered the Club House Bar located in Anderson, Indiana. The appellant was tending bar at the time; also present were appellant's wife, the registered owner of the bar, and several other customers. Moore joined one of the customers sitting at the bar and they apparently bought each other drinks; it also appears that Moore bought two or three rounds for the house.

When Moore ordered yet another round of drinks for the house, appellant refused to set them up, stating that the customers all still had unfinished drinks in front of them. Upon this refusal, Moore began to complain with abusive and extremely vulgar language, directing his comments not only to appellant but to appellant's wife who was nearby. Appellant attempted to quiet Moore, reminding him that ladies were present and that if he did not refrain from the use of such language he would have to leave. At this point Moore reached

Page 124

behind the bar in an apparent attempt to grab appellant but was pushed back to his bar stool. Moore then grabbed a beer [256 Ind. 581] bottle sitting on the bar and swung at appellant; in an attempt to escape the blow, appellant reeled backward and simultaneously grabbed a wooden stick-like club from under the bar which he used to strike Moore.

It is not clear as to where appellant struck Moore, but the club flew from his hand across the room. Appellant immediately moved from behind the bar to retrieve the club while Moore broke the beer bottle across the edge of the bar. Moore continued to advance with the broken beer bottle in his upraised hand. Appellant picked up the club and struck Moore in the head, causing him to fall to the floor. Appellant then dragged Moore to the street in front of the tavern and instructed his wife to call the police and an ambulance. Moore was taken to the hospital where he died several days later from the head injury.

Essentially appellant argues only that the evidence presented was insufficient to sustain the jury's verdict of assault. Specifically he would argue that the undisputed evidence indicates his actions were lawful in that he was merely attempting to defend himself from Moore's apparent attack on his person. The state, on the other hand, argues that the statutory elements of assault have been proven beyond a reasonable doubt and that the verdict must be upheld.

Simple assault is defined at Ind.Ann.Stat. § 10--402 (1956 Repl.), I.C.1971, 35--13--4--7 as follows:

'Whoever, having the present ability to do so, attempts to commit a violent injury upon the person of another, is guilty of an assault, * * *'

Whether appellant attempted to commit a violent injury upon the person of Moore, however, cannot be determined in a factual vacuum. The evidence is undisputed that appellant exercised commendable restraint in his encounter with Moore and resorted to force only upon being physically assaulted. That one is entitled to defend himself in circumstances where it reasonably appears that he is in danger of [256 Ind. 582] bodily harm has long been the law. Culp v. State (1944), 222 Ind. 202, 52 N.E.2d 486; Hughes v. State (1937), 212 Ind. 577, 10 N.E.2d 629; Duncan v. State (1882), 84 Ind. 204. Further, as we said in Hughes v. State, supra:

'It is not necessary that a person be violently assaulted, or assaulted at all, before he has the 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.' 212 Ind. at 585--586, 10 N.E.2d at 633.

It is the circumstances existing at the time which must be focused upon and the reasonableness with which the defendant reacted to such circumstances. As was said in Heglin v. State (1956), 236 Ind. 350, 140 N.E.2d 98:

'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...

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18 practice notes
  • Bonds v. State, No. 3--273A13
    • United States
    • Indiana Court of Appeals of Indiana
    • November 27, 1973
    ...on whether he acted reasonably in moving to repel any endangering advance by Thorpe at the time of the shooting. Johnson v. State (1971), 256 Ind. 579, 271 N.E.2d 123; Heglin v. State (1957), 236 Ind. 350, 140 N.E.2d 98, and [158 Ind.App. 585] Hughes v. State (1937), 212 Ind. 577, 10 N.E.2d......
  • Banks v. State, No. 969S214
    • United States
    • Indiana Supreme Court of Indiana
    • December 16, 1971
    ...was upon the State to negate the element of self-defense by substantial evidence of probative value.' Johnson v. State (1971), Ind., 271 N.E.2d 123, 124--125, and cases In cases involving an assault and battery, when elements of the offense charged are proved, there usually will be direct p......
  • Gunn v. State, No. 2-1075A262
    • United States
    • Indiana Court of Appeals of Indiana
    • August 3, 1977
    ...unwarranted attack. Therefore self-defense in homicide and assault cases must remain a viable rule . . . ." Johnson v. State (1971), 256 Ind. 579, 582, 271 N.E.2d 123, 124. Our legislature reaffirmed Page 1240 this policy by enacting IC 1971, 35-13-10-1 (Burns Code Ed.); See : Loza v. State......
  • Moore v. State, No. 180S17
    • United States
    • Indiana Supreme Court of Indiana
    • January 8, 1981
    ...it. Williams v. State, (1978) 269 Ind. 265, 379 N.E.2d 981; White v. State, (1976) 265 Ind. 32, 349 N.E.2d 156; Johnson v. State, (1971) 256 Ind. 579, 271 N.E.2d 123. This burden is added to the existing burden of the prosecution to prove the elements of the offense. It requires the prosecu......
  • Request a trial to view additional results
18 cases
  • Bonds v. State, No. 3--273A13
    • United States
    • Indiana Court of Appeals of Indiana
    • November 27, 1973
    ...on whether he acted reasonably in moving to repel any endangering advance by Thorpe at the time of the shooting. Johnson v. State (1971), 256 Ind. 579, 271 N.E.2d 123; Heglin v. State (1957), 236 Ind. 350, 140 N.E.2d 98, and [158 Ind.App. 585] Hughes v. State (1937), 212 Ind. 577, 10 N.E.2d......
  • Banks v. State, No. 969S214
    • United States
    • Indiana Supreme Court of Indiana
    • December 16, 1971
    ...was upon the State to negate the element of self-defense by substantial evidence of probative value.' Johnson v. State (1971), Ind., 271 N.E.2d 123, 124--125, and cases In cases involving an assault and battery, when elements of the offense charged are proved, there usually will be direct p......
  • Gunn v. State, No. 2-1075A262
    • United States
    • Indiana Court of Appeals of Indiana
    • August 3, 1977
    ...unwarranted attack. Therefore self-defense in homicide and assault cases must remain a viable rule . . . ." Johnson v. State (1971), 256 Ind. 579, 582, 271 N.E.2d 123, 124. Our legislature reaffirmed Page 1240 this policy by enacting IC 1971, 35-13-10-1 (Burns Code Ed.); See : Loza v. State......
  • Moore v. State, No. 180S17
    • United States
    • Indiana Supreme Court of Indiana
    • January 8, 1981
    ...it. Williams v. State, (1978) 269 Ind. 265, 379 N.E.2d 981; White v. State, (1976) 265 Ind. 32, 349 N.E.2d 156; Johnson v. State, (1971) 256 Ind. 579, 271 N.E.2d 123. This burden is added to the existing burden of the prosecution to prove the elements of the offense. It requires the prosecu......
  • Request a trial to view additional results

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