Moore v. State, 28437.

• Decision Date: 27 October 1948
• Docket Number: No. 28437.,28437.
• Citation: 226 Ind. 428,81 N.E.2d 669
• Parties: MOORE v. STATE.
• Court: Indiana Supreme Court

226 Ind. 428

81 N.E.2d 669

MOORE

v.STATE.

No. 28437.

Supreme Court of Indiana.

Oct. 27, 1948.

Aaron Moore was convicted of voluntary manslaughter, and he appeals.

Reversed with instructions.Appeal from Vanderburgh Circuit Court; H. Nat Youngblood, judge.

Lockyear & Lockyear and James D. Lopp, all of Evansville, for appellant.

Cleon H. Foust, Atty. Gen., Frank E. Coughlin, First Deputy Atty. Gen. and Merl M. Mall, Deputy Atty. Gen., for appellee.

STARR, Judge.

The appellant was charged with the crime of voluntary manslaughter A trial was had before a jury which resulted in a verdict of guilty on which verdict judgment was rendered and appellant was sentenced to imprisonment in the Indiana Reformatory for not less than two or more than twenty-one years. From this verdict and judgment, this appeal is taken.

The assignment of error is the overruling of appellant's motion for a new trial. Appellant, in this motion, assigns as one reason therefor, the giving by the court of its own motion, instruction No. 8, which reads as follows:

‘Voluntary manslaughter is an unlawful taking of human life, and the rule of self-defense is a valid defense thereto. Mere words, however abusive, or an attack with bare hands, and without any weapon of any kind, will not justify the use of a dangerous and deadly weapon, unless the defendant believes and has good cause to believe that his life is in danger or that his property or property lawfully entrusted to his care is in danger of being destroyed or damaged.

‘The question as to whether the defendant, in the exercise of his right of self-defense, really believed that his life was in danger, or that his property or property lawfully entrusted to his care, was in danger of being destroyed or damaged is a question for the jury to determine from all of the facts and circumstances introduced in evidence.’

Appellant's objection to this instruction was in writing. One ground therefor, was that it was erroneous ‘in that it limits the justification of a homicide to one who believes and has good cause to believe that his life is in danger or that his property, or property lawfully entrusted to his care, is in danger of being destroyed or damaged. This instruction fails to point out to the jury that one who honestly believes or who has reasonable ground to believe that he is in danger of receiving great bodily harm from such assailant may take life in the defense of his own person. This essential element is not mentioned in this instruction, and therefore, the instruction as written and as given to the jury, is erroneous.’

The evidence in this case was such that the appellant was entitled to a correct statement of the law of self-defense.

It is our opinion that this instruction was erroneous for the reason set out in the portion...