Males v. State
| Decision Date | 30 April 1927 |
| Docket Number | No. 24415.,24415. |
| Citation | 199 Ind. 196,156 N.E. 403 |
| Parties | MALES v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Madison Circuit Court; William Kittinger, Judge.
Fred Males was convicted of murder in the second degree, and he appeals. Reversed and remanded, with directions.Floyd G. Christian and Gentry, Cloe & Campbell, all of Noblesville, and Diven, Diven & Campbell, of Anderson, for appellant.
U. S. Lesh, Atty. Gen., and O. S. Boling, of Indianapolis, 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.
[1] 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.
[2] 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, 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 did 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 (1893) supra.
[3] 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” (Const. of Indiana, art. 1 § 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, 147 Ind. 334, 381, 47 N. E. 157, and further explication is unnecessary.
[4][5] Appellant claims the giving of the following instruction was error:
The jury could not fix the punishment which would bind the court in passing sentence upon a verdict of guilty; in this case, it could only find the degree of the crime. Section 2312, Burns' 1926. In so far as the instruction being applicable to either the pleadings or the evidence in the case, it was useless. If it might be considered that defendant's physical condition and the length of time he waited in jail before trial should be an element in reaching a verdict of the degree of the crime committed, it is clearly erroneous. It neither pertained to nor was it applicable to the evidence or the pleadings. It was irrelevant. Though appellee asserts that the instruction was harmless, still, by causing the court's instructions to be overloaded with useless material, the weight thus carried might be the cause of preventing the legal journey reaching the proper destination. We unqualifiedly disapprove of this instruction, but if it were the only error in the case we might hesitate to reverse the case upon this ground alone. The case of Davis v. State, 152 Ind. 145, 52 N. E. 754, relied on by the appellee, is clearly distinguished in that it concerned pure surplusage.
[6] Instruction No. 32 concerns the right of self-defense. Defendant objects to it because of the use of the words “reasonable person,” which is the antecedent of the pronouns which follow, and is also the antecedent of the words “such person,” and which appellation designates an ideal person to be the guide by which to conclude that the defense made by defendant was self-defense or not. The instruction follows:
The lawful way for a jury to approach and consider the evidence which relates to defense by the accused to conclude whether the accused acted in self-defense is to get the accused's attitude of mind when he made his defense, under all the surrounding circumstances,...
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