King v. State
| Decision Date | 01 March 1918 |
| Docket Number | 23,312 |
| Citation | 118 N.E. 809,187 Ind. 220 |
| Parties | King v. State of Indiana |
| Court | Indiana Supreme Court |
From Lawrence Circuit Court; Oren O. Swails, Judge.
Prosecution by the State of Indiana against Van King. From a judgment of conviction the defendant appeals.
Affirmed.
R. L Mellen, for appellant.
Ele Stansbury, Attorney-General, and Marshall Woolery, for the state.
Appellant in the court below was charged by indictment and convicted by a jury of voluntary manslaughter. The only question presented by this appeal calls for a review of the evidence. Appellant defended on the ground of self-defense. The defense of justifiable homicide was not sustained by the jury, and its verdict in this respect is questioned by appellant on the ground that there is no evidence tending to show an unlawful intention to take the life of the decedent, which is an essential element to be proved in order to sustain a charge of voluntary manslaughter.
Appellant admits that he fired two shots at the person of the decedent from a thirty-eight-caliber revolver. Both shots took effect--the first in the neck and the second in the body of decedent, thereby inflicting mortal wounds from which he immediately died. The revolver used by appellant in this instance was a dangerous and deadly weapon (Keesier v. State [1899], 154 Ind. 242, 245, 56 N.E. 232, 21 L. R. A. [N. S.] 500, note), and its use as here shown by the uncontradicted evidence would authorize the inference of an intention to kill. Murphy v. State (1869) 31 Ind. 511; Deilks v. State (1895), 141 Ind. 23, 40 N.E. 120; Walker v. State (1894), 136 Ind. 663, 669, 36 N.E. 356; McDermott v State (1883), 89 Ind. 187, 194.
The jury evidently drew this inference; and the intention to kill once established continued, and it was not controverted by the defense relied on in this case. Appellant justified his act on the ground that he committed the act to protect himself from great bodily harm. The law of self-defense is now well settled in this state, but the question as to whether or not appellant made out a case entitling him to this protection was a question of fact for the jury. As to the law of self-defense, this court in Runyan v State (1877), 57 Ind. 80, 84, 26 Am. Rep. 52, said: "The weight of modern authority, in our judgment, establishes the doctrine, that, when a person, being without fault and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable." The doctrine announced in this case has been approved by this court in a number of cases--notably, Page v. State (1895), 141 Ind. 236, 40 N.E. 745; Plummer v. State (1893), 135 Ind. 308, 314, 34 N.E. 968; Fields v. State (1892), 134 Ind. 46, 55, 32 N.E. 780. The weight of the evidence and the inferences to be drawn therefrom are matters entirely within the province of the jury and, upon a motion for a new trial, to be reviewed by the trial court. Presumably all this was done and a correct conclusion reached. The homicide occurred on November 10, 1916, at about 4:30 o'clock in the afternoon. Appellant and his wife testified in substance that decedent, without invitation, entered the home of appellant, and to his sister, who was the wife of appellant and the only person then in the house, used scurrilous and epithetically abusive language, and announced his purpose of killing the occupants of that...
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