Page v. State

• Decision Date: 14 May 1895
• Docket Number: 17,514
• Citation: 40 N.E. 745,141 Ind. 236
• Parties: Page v. The State
• Court: Indiana Supreme Court

40 N.E. 745

141 Ind. 236

Page v. The State

No. 17,514

Supreme Court of Indiana

May 14, 1895

From the Morgan Circuit Court.

The judgment is reversed, with instructions to sustain the appellant's motion for a new trial.

J. C Robinson, M. H. Parks, A. D. Rose, J. E. Sedwick and O Mathews, for appellant.

W. A Ketcham, Attorney-General, M. Moores, W. R. Harrison, C. G Renner and W. E. McCord, for State.

Hackney, J. Jordan, J., was absent upon the rendition of this opinion.

OPINION

Hackney, J.

The appellant was charged with the offense of murder in the first degree in the killing of Hiram C. Gregory, and upon the trial he was found guilty of voluntary manslaughter.

The defense was that the homicide was justifiable as in self-defense.

Of the charges given by the court, were the following:

"10. One who is without fault and in a place where he has a right to be, and is there unlawfully assailed, may without retreating repel force with force and go even to the extent of taking the life of his adversary, if in repelling his assailant he uses no more force than is reasonably necessary in his own self-defense."

"18. The law is tender of human life and will not suffer the life even of an assailant and wrong-doer to be taken unless the assault is of such a character as to make it appear to the defendant reasonably necessary to him to take life in defense of his own life, or to protect his person from great bodily harm. In order, therefore, to justify a homicide on the ground of self-defense, a person endangered or assailed must employ all reasonable means within his power, consistent with his safety, to avoid the danger and avert the necessity of taking life. He must even retreat, if retreat be safe and practicable; but where one is attacked and his life is in danger, or he is in danger of great bodily harm from his adversary, and retreat is not safe or practicable, he is not obliged to retreat; he may even pursue his adversary, if in that way lies his safety, until he has secured himself from the threatened danger, and if in so doing, to save himself, he kills his adversary, it is self-defense."

The proposition contained in the tenth charge is conceded to be the law as far as it goes, and there can be no doubt, in this State, that it is the law. Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1; Presser v. State, 77 Ind. 274; Batten v. State, 80 Ind. 394; Story v. State, 99 Ind. 413; Fields v. State, 134 Ind. 46, 32 N.E. 780; Plummer v. State, 135 Ind. 308, 34 N.E. 968.

One of the propositions charged in the eighteenth instruction, it is insisted on behalf of the appellant, is at variance with that contained in the tenth charge, namely, upon the duty as to retreating. The first proposition of the charge, namely, that taking life is not justifiable where there is no reasonable apprehension of the loss of life or the suffering of great bodily harm, or, the reason for that rule: the tender regard of the law for human life, does not invite criticism. The third proposition, that where one is in peril of life or of great bodily harm from the attack of an adversary, he is not obliged to retreat, but may pursue his adversary, even to the taking of life, if necessary for his protection from that peril, is probably correct as far as it goes, unless it be in the doubtfully expressed contingency that retreat be not safe or practicable, but it might have applied the same rule in the contingency of the reasonable apprehension of such peril. The second proposition of the charge is that, "to justify a homicide on the ground of self-defense, a person endangered or assailed must employ all reasonable means within his power, consistent with his safety, to avoid the danger and avert the necessity for taking life; he must even retreat, if retreat be safe and practicable." It is true, as we have seen, that the second proposition is attempted to be given dependence upon the first by the employment of the conjunction therefore. This dependence is only as supplying the reason for the second proposition, and does not make the hypothesis of the second proposition depend upon contingency stated in the first proposition.

The sense of the two propositions is that, because of the tender regard of the law for human life, one who has no reasonable apprehension of losing his life or suffering great bodily harm may not take the life of his assailant, and, for this reason, "to justify a homicide on the ground of self-defense, a person endangered or assailed," regardless of the degree of real or apparent danger, "must even retreat, if retreat be safe and practicable." That this is the sense in which the court intended to express the two propositions is, to some extent, manifested in the third proposition of the charge, which announces that one in peril of life or great bodily harm from his adversary, "and retreat is not safe or practicable," may pursue, etc. In our judgment the proper interpretation of the eighteenth charge, in its second proposition, is in positive conflict with the law as stated in the tenth charge, and with the law as held in all of the cases we have cited and many other decisions of this State.

In Bishop's New Criminal Law (Ed. 1892), Ch. 56, the doctrine of self-defense is treated under two general divisions; the perfect defense, where the life of an aggressor may be taken when necessary, and the imperfect defense, where a trespass against the person or property may be resisted, yet not to the extent of involving the life of the trespasser.

In section 850 the author illustrates this distinction as it involves the duty of retreating as follows: "These cases of mere assault and cases of mutual quarrel, where the attacking party has not the purpose of murder in his heart, are those to which is applied the doctrine of the books that one can not justify the killing of another, though apparently in self-defense, unless he retreated "to the wall" or other interposing obstacle, before resorting to this extreme right. But where an attack is made with murderous intent, there being a sufficient overt act, the person attacked is under no duty to flee; he may stand his ground, and if need be kill his adversary. And it is the same where the attack is with a deadly weapon; for in this case the person attacked may well assume that the other intends murder, whether he does in fact or not."

Numerous authorities are cited to these propositions and among them is the case...