Males v. State
| Decision Date | 30 April 1927 |
| Docket Number | 24,415 |
| Citation | 156 N.E. 403,199 Ind. 196 |
| Parties | Males v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW..---It is not error to refuse to give an instruction which is covered by an instruction given. p. 198.
2. HOMICIDE.---Instructions as to self-defense held properly refused.---In a prosecution for murder, instructions on self-defense which did not require the defendant to be without fault and in a place where he had a right to be, or if not without fault at the inception of the assault, that he gave up the affray before injury was done to his opponent and retreated, were properly refused. p. 198.
3. CRIMINAL LAW.---Instruction that evidence was not to be considered in fragmentary parts did not invade province of jury to determine the law and the facts.---An instruction that the evidence was not to be considered in fragmentary parts as though each fact and circumstance stood apart from the others, but that the entire evidence should be considered, did not invade the constitutional province of the jury to determine the law and the facts (Art. 1, 19, 71 Burns 1926). p. 199.
4 HOMICIDE.---Jury cannot fix the punishment for murder.---In a prosecution for murder, the jury cannot fix the punishment and bind the court in passing sentence on the defendant. p 199.
5 HOMICIDE.---Instruction authorizing jury to consider defendant's physical condition and time spent in jail held error.---In a prosecution for murder, an instruction that the jury might consider evidence as to the defendant's physical condition and the length of time he had been confined in jail in determining the punishment to be assessed was error, as the jury had nothing to do with fixing the punishment unless it found him guilty of a lesser crime than murder, which is authorized by 2312 Burns 1926 (Davis v. State, 152 Ind. 145, distinguished). p. 199.
6. HOMICIDE.---Instruction as to self-defense held error.---An instruction as to self-defense which informed the jury that if a person is assaulted in such a manner as to produce on the mind of a "reasonable person" a belief that he is in actual danger of losing his life, he would be justified in defending himself, was error, as it authorized the jury to use an imaginary person as a guide in determining whether the defendant was justified in repelling the assault. p. 200.
7. HOMICIDE.---Instruction as to withdrawal of defendant if he invited the controversy held not error.---An instruction that "if the defendant invited the controversy and it is shown by the evidence that he did," it would be the duty of the defendant to withdraw from the contro- versy, was not erroneous as stating that the evidence showed that he did, but the word "if" which qualified the first clause was intended to and did qualify the second clause and was not misleading. p. 201
8. HOMICIDE.---Instruction that defendant should be acquitted if there was any doubt whether he was without fault, held erroneous.---In a prosecution for murder, where the defendant claimed that he acted in self-defense, an instruction that the defendant should be found not guilty if there was a "reasonable doubt from all the evidence as to whether the defendant was without fault" was erroneous, for the reason that it stated a negative pregnant. p. 201.
9. HOMICIDE.---Instruction as to "reasonable doubt" held erroneous.---It is not the law that one accused of murder is presumed to be at fault by reason of being the aggressor until it is established beyond a reasonable doubt that he was at fault. p. 201.
10. HOMICIDE.---Instruction containing statement that carrying revolver concealed is unlawful act is irrelevant to prosecution for murder.---In a prosecution for murder, an instruction that carrying a concealed revolver is unlawful was erroneous, even though the evidence tended to prove that the homicide was caused by a shot from a pistol, as such fact would not be relevant to the prosecution. p. 202.
11. CRIMINAL LAW.---An instruction must not only be relevant to the evidence, but it must also be applicable to some element of the offense as defined in the pleadings. p. 202.
12. HOMICIDE.---Instruction as to what evidence must show to justify claim of self-defense held erroneous.---An instruction in a prosecution for murder, that, before the killing could be justified on the ground of self-defense, it must appear to the "reasonable satisfaction" of the jury that the defendant had reasonable cause to believe and did believe that the deceased was about to kill him or do him some great bodily harm, was erroneous, as it is sufficient to require his acquittal if the evidence raises a reasonable doubt as to his guilt. p. 202.
From Madison Circuit Court; William A. Kittinger, Judge.
Fred Males was convicted of murder in the second degree, and he appeals.
Reversed.
Floyd G. Christian, Gentry, Cloe & Campbell and Diven, Diven & Campbell, for appellant.
U. S. Lesh, Attorney-General and O. S. Boling, for the State.
This is a criminal prosecution upon an indictment which charged appellant with murder in the second degree, by unlawfully, feloniously, purposely and maliciously, but without premeditated malice, killing deceased by shooting him with a revolver, etc. The verdict was guilty of murder in the second degree, upon which judgment was rendered that appellant be sentenced to the state prison for life.
The error relied upon for reversal is that the court erred in overruling appellant's motion for a new trial. The alleged errors presented by the motion for a new trial are based upon the instructions given by the court upon its own motion, and the sufficiency of the evidence to sustain the verdict. The defense was upon the theory of shooting in self-defense. Inasmuch as the case is to be reversed because of erroneous instructions, it is unnecessary to narrate the facts or to pass upon the sufficiency of the evidence to sustain the verdict.
Many instructions are challenged. They will be considered in their order of presentation.
Instruction No. 6, requested by the defendant and refused by the court, was covered by instruction No. 22, given by the court. It was not error to refuse it.
The defendant tendered two instructions to the court which concerned self-defense. The instructions were incomplete, whether taken singly or together. The case of Plummer v. State (1893), 135 Ind. 308, 314, 34 N.E. 968, is cited in the brief to sustain the first instruction, which may apply to both of them, but this case held that the defense must be based upon the fact that the defendant must be without fault and in a place where he had a right to be. Neither of these instructions indicate that even though defendant was not without fault at the inception of the assault, yet he gave up the fight before injury was done to his opponent, and retreated. The requested instructions were properly refused. Spurlin v. State (1919), 189 Ind. 273, 276, 124 N.E. 753; Plummer v. State, supra.
Error is predicated upon the following sentence, which is a part of instruction No. 14, to wit: "Evidence is not to be considered in fragmentary parts, and as though each fact and circumstance stood apart from the others, but the entire evidence is to be considered," for the reason that it invades the province of the jury, in that it imposes restrictions and limitations derogatory to the organic law, that, "In all criminal cases whatever, the jury shall have the right to determine the law and the facts." (Constitution of Indiana, Art. I, § 19); and because it is contradictory, confusing, uncertain and indefinite. The objectionable sentence is upheld in its meaning and application by the reasoning and conclusion of the court in the case of Hinshaw v. State (1897), 147 Ind. 334, 381, 47 N.E. 157, and further explication is unnecessary.
Appellant claims the giving of the following instruction was error The jury...
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