Mundy v. State
Decision Date | 03 March 1966 |
Docket Number | No. 30458,30458 |
Citation | 247 Ind. 224,214 N.E.2d 389 |
Parties | Hugh Eric MUNDY, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
John G. Bunner, Evansville, for appellant.
John J. Dillon, Atty. Gen., for appellee.
This is an appeal from a judgment of the Vanderburgh Circuit Court convicting appellant of the crime of manslaughter. He was indicted on the charge of second-degree murder. Following a plea of not guilty, he was tried by jury which returned a verdict finding him guilty of manslaughter as included in the indictment. A sentence of two to twenty-one years in the Indiana State Prison was imposed. A motion for new trial was filed and overruled. This appeal followed. The assignment of errors is based upon the overruling of the motion for new trial.
The only specification in the motion for new trial which the court needs to consider is No. 5, which reads as follows:
'5. Error of law occurring at the trial and excepted to by the defendant in this to-wit:
'The Court erred in reading to the jury the State's tendered Instruction No. 7, which said State's Instruction No. 7 and defendant's objection thereto are as follows:
'* * *
'OBJECTION:
'The defendant objects to the Court's reading to the jury State's tendered Instruction No. 7 for the reason that said instruction places on the defendant the burden of proving justification or excuse to 'rebut the presumption of malice'.
Appellant argues that this instruction attempts to distinguish between murder and manslaughter, but the last sentence thereof unequivocally states that even if there is sufficient provocation to rebut the presumption of malice, the killing is still unlawful and the offense is manslaughter. It is claimed that there is no explanation to the jury advising them that such killing might not be unlawful due to an act of self- defense. Accordingly, appellant contends that this is an erroneous instruction which is reversible error.
Appellee says that the court deliberately did not attempt to explain self-defense in State's Instruction No. 7, but rather chose to set it out in separate instructions for the clarification of the jury. It argues the general rule that instructions are to be considered by the jury as a whole, and that it is not necessary to embrace all the law in one instruction, citing as authority Flowers v. State (1956), 236 Ind. 151, 139 N.E.2d 185; Southerland v. State (1936), 209 Ind. 308, 197 N.E. 841, and Bohan v. State (1924), 194 Ind. 227, 141 N.E. 323.
However, it is also the rule that an instruction correctly defining the law cannot cure an erroneous instruction unless such instruction is withdrawn or modified. Moore v. State (1948), 226 Ind. 428, 81 N.E.2d 669; Krauss v. State (1947), 225 Ind. 195, 73 N.E.2d 676; Brannin v....
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Head v. State
...of a bad instruction is cured by giving a proper one. See, e.g., Brewer v. State, (1969) 253 Ind. 154, 252 N.E.2d 429; Mundy v. State, (1966) 247 Ind. 224, 214 N.E.2d 389; Harrington v. State, (1980) Ind.App., 413 N.E.2d 622. As this Court recently stated: "A general verdict can not stand w......
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Nuss v. State, 1--874A123
...and impliedly this instruction informed the jury that a killing in self defense may not always be excusable. Mundy v. State (1966), 247 Ind. 224, 214 N.E.2d 389; IC 1971, 35--1--47--9, Ind.Ann.Stat. § 9--2320 (Burns 1956); Ind. Rules of Procedure, Trial Rule 61; CR. Thus, the trial court co......
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Harrington v. State
...above. Although jury instructions must be read as a whole, an erroneous instruction is not cured by a correct one. Mundy v. State (1966) 247 Ind. 224, 214 N.E.2d 389. A conviction must be reversed if instructions are inconsistent and calculated to mislead the jury or leave it in doubt as to......
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Barker v. State
...as heretofore quoted, as well as other precedent. See, e.g., Brewer v. State, (1969) 253 Ind. 154, 252 N.E.2d 429; Mundy v. State, (1966) 247 Ind. 224, 214 N.E.2d 389; Harrington v. State, (1980) Ind.App., 413 N.E.2d 622. It cannot be assumed that in light of the mandatory instruction--"you......