King v. State, 30914

• Decision Date: 07 March 1968
• Docket Number: No. 30914,30914
• Citation: 234 N.E.2d 465,249 Ind. 699
• Parties: Herbert W. KING, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 465

234 N.E.2d 465

249 Ind. 699

Herbert W. KING, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 30914.

Supreme Court of Indiana.

March 7, 1968.

Robert S. McCain, Fort Wayne, for appellant.

John J. Dillon, Atty. Gen., John F. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

This is an appeal in a criminal action in which the appellant, Herbert W. King, Jr., was charged with, and convicted of, murder in the second degree. Trial was to a jury, and a verdict of guilty was returned. Judgment was entered on the verdict and the appellant was sentenced to a term of life imprisonment.

The appellant waived arraignment and entered a plea of not guilty to the indictment, which, omitting the caption, reads as follows:

'The Grand Jury of the County of Allen, State of Indiana, upon their oaths, present that Herbert W. King, Jr., on the 11th day of June, 1965, in the County of Allen, in the State of Indiana, unlawfully, feloniously, purposely and maliciously, but without premeditation, did kill and murder Gene Carl Faust, a human being, by then and there unlawfully, feloniously, purposely and maliciously, but without premeditation, shooting at and against the said Gene Carl Faust, with a certain .38 caliber revolver, loaded and charged with gun power and bullet and thereby mortally wounded said Gene Carl Faust with said bullet, discharged and shot as aforesaid, from which mortal wound the said Gene Carl Faust then and there died; the Grand Jurors, upon their oaths, as aforesaid, do say and charge that the said Herbert W. King, Jr., did then and there unlawfully, feloniously, purposely and maliciously, but without premeditation, kill and murder the said Gene Carl Faust, in manner and form aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

The indictment was filed pursuant to the terms of the following statute:

'Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and, on conviction, shall be imprisoned in the state prison during life. (Acts 1905, ch. 169, § 350, p. 584.)' Ind.Ann.Stat. § 10--3404 (1956 Repl.)

Under the issues formed at trial the burden was upon the State of Indiana to prove beyond a reasonable doubt that:

1. Appellant killed the decedent.

2. The killing was done purposely and maliciously.

In our determination it is our duty to look to the record of the evidence most favorable to the appellee, State of Indiana. Capps v. State (1967), Ind., 229 N.E.2d 794. The evidence when viewed in this manner may be summarized as follows:

On June 11, 1965 Herman Gayheart went to his brother's apartment, a remodeled single residence, at 924 West Washington Street, Fort Wayne, Indiana. He arrived there at or around noon. Herman Gayheart's brother's apartment is on the lower left side of the building. Mrs. Liz Lyons, on that date lived in the lower right apartment. Appellant, on that date, lived in an upstairs apartment on the left side of the building. There is a common front porch on the building with a small divider running from the steps to the front of the house.

Herman Gayheart had known decedent, Gene Carl Faust, and his family for about three years. During the afternoon on that date, Herman Gayheart and his brother drank five beers from a six-pack of beer. Liz Lyons drank one can of beer.

About 6 o'clock that evening Herman Gayheart, Liz Lyons, Herman Gayheart's cousin and the Kings were on the front porch. Dorothy Faust, wife of the decedent, and her two children were also on the front porch.

Then Gene Faust drove up in a 1953 Chevrolet and parked it on a side street. He got out of the car and came around to the front of the house. His little boy ran down the steps to greet him and said hello. Then the little boy called him a name--either a 'souse' or a 'louse'. This remark upset decedent and he slapped his son. The child started to bleed.

The decedent then came up to the front porch and he and Liz Lyons had a conversation about discipline of the boy. Some remarks were exchanged by and between Herman Gayheart and the decedent and a fight started. Herman Gayheart, during the course of the fight, hit decedent on the head with the beer bottle. The two men fought for a couple of minutes.

Appellant then came over to where the two men were fighting and told them to break it up. At this point, appellant had a gun in his hand. Herman Gayheart turned decedent loose and backed up and got on the divider. At that time, decedent and appellant started to fight. They were on Liz Lyons' side of the porch. When they were fighting, appellant had his gun in his belt. He was not holding the gun in his hand. Decedent had his arms locked around appellant's legs and he was shaking appellant. Appellant got the gun out from under his belt and said he was going to shoot decedent. Gayheart told appellant not to shoot him and appellant told Gayheart to stay out of it. All witnesses stated they heard a gun fire. When the police arrived, they asked who shot Gene Carl Faust and appellant told them he had done it.

Harman Gayheart specifically testified as follows:

'A. They struggled around there two or three minutes fighting, and then Gene has his arms locked around Mr. King's legs there and his head down there at his knees and he was shaking him and Mr. King was getting his gun out from under his belt. He had stuck it under his pants right there and he was getting it back out and said he was going to shoot him and he got up and I said, 'Don't shoot him', and he walked over towards me and he put the gun on me then.

Q. Did he take the gun out of his belt?

A. He walked out just behind me when he said he was going to shoot him.

Q. Said he was going to shoot who?

A. Gene.'

The witness Liz Lyons testified that the decedent and Gayheart had stopped fighting when the appellant appeared with the gun and that the deceased was trying to get in the door when the appellant shot him.

Dorothy Mae Faust testified she saw the decedent with a gun in his hand when he came out the middle door and walked over to the middle ledge.

And appellant aimed the gun, point blank, at Gayheart's face when Gayheart turned around and appellant said 'Quit your fighting or I'll blow your brains out'.

In response to a question 'Why did you shoot this man at the time you did?' Appellant answered: 'Well, more or less he was overpowering me and out of fear, so when I got the chance I shot him'.

The central question presented by this appeal is whether there was sufficient evidence of probative value and sufficient reasonable inferences to be adduced therefrom, to justify the jury's finding of malice and purpose as a necessary element of the crime.

The question resolves itself into two issues, which may be stated as follows:

(1) Whether, on the record before us, the jury was required to find as a matter of law that appellant acted in self-defense, and

(2) If the jury was not required to find as a matter of law that appellant acted in self-defense, was the jury then required, as a matter of law, to find that the evidence supports only a conviction for manslaughter, rather than for second-degree murder

Where one has taken the life of another human being, and thereafter contends that he did so in self-defense, he can only be successful in his contention if:

(1) he acted without fault,

(2) he was in a place where he had a right to be, and

(3) he was in real danger of death or great bodily harm, or in such apparent danger as caused him in good faith to fear death or great bodily harm.

Bullard v. State (1964), 245 Ind. 190, 195 N.E.2d 856, 197 N.E.2d 295; Hightire v. State (1966)8 Ind., 213 N.E.2d 707. The burden is upon the State to show that defendant does not meet on or more of these requirements. Dorak v. State (1915), 183 Ind. 622, 109 N.E. 771. Whether the State has borne its burden of showing that the homicidal act was not carried out in self-defense is a question of ultimate fact to be decided by the jury. Robinson v. State (1962), 243 Ind. 192, 184 N.E.2d 16.

After the jury has made this determination in favor of the State and against the defendant, this Court, on appeal:

'* * * has upon it a duty to consider, not to weigh, the evidence in the case for the purpose of determining whether there is any substantial evidence of probative value from which a jury reasonably could have inferred that the appellant was guilty of the offense charged' Robinson v. State, supra, 243 Ind. at 197, 184 N.E.2d at 18. See also Easton v. State (1967), Ind., 228 N.E.2d 6; Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641.

From the evidence, as above set out, there was clearly substantial evidence of probative value to justify the jury in concluding that appellant was not in real danger of death or great bodily harm, or was not in good faith in fear of death or great bodily harm due to apparent danger. Furthermore, there is also substantial evidence of probative value which would justify the jury in determining that appellant did not act without fault.

There was testimony to the effect that the decedent had been badly, almost viciously, beaten in the fight with Herman Gayheart that immediately preceded the shooting. The decedent's wife, Mrs. Faust, testified that Gayheart had stopped fighting with decedent, upon appellant's demand and that the appellant himself began fighting with the decedent. Mrs. Faust also said that the last thing she remembered seeing before she heard the shot was the decedent holding on to appellant's legs, and that decedent might have been trying to get up.

This clearly constitutes substantial evidence of probative value tending to show that appellant was wrongfully prolonging a disturbance of the peace by fighting with decedent, and, in any event, decedent was in no condition which would lead appellant to conclude he was in danger of death or great bodily...