Powers v. State, 25768.
| Decision Date | 20 February 1933 |
| Docket Number | No. 25768.,25768. |
| Citation | 204 Ind. 472,184 N.E. 549 |
| Parties | POWERS v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Decatur Circuit Court; John W. Craig, Judge.
Michael Powers was convicted of murder in the second degree, and he appeals.
Reversed, with instructions.
John E. Osborn, E. E. Hite, and Robt. McKay, all of Greensburg, and Frank Hamilton, of Terre Haute, for appellant.
James M. Ogden, Atty. Gen., and E. Burke Walker, Deputy Atty. Gen., for the State.
The appellant, Powers, was indicted for murder in the first degree; tried and convicted of murder in the second degree.
He assigns as error the overruling of his motion to quash the indictment and the overruling of his original and supplemental motions for a new trial. The only questions presented arise on the motion for a new trial, and principally involve the rulings of the court on the admissibility of evidence.
The record discloses that the appellant, Powers, and the decedent, Fulks, were neighbors living almost directly opposite each other in the city of Greensburg; that they were both past 60 years of age, and, previous to the controversy which resulted in the death of Fulks, had been on good terms. Many character witnesses testified to the good reputation of Powers, and their evidence is not controverted by the state. Powers was a plasterer, and, in addition to that business, for some time had been conducting a small restaurant and grocery store. On the day of the homicide, he came home from his work of plastering, unloaded his car, changed his clothes, and drove into the city to purchase supplies. He noticed that Fulks had placed a “no parking” sign on his lawn almost directly opposite the Powers establishment. A street leading to the Powers garage was being repaired, and Powers had parked his car occasionally in front of the Fulks' house, as had customers of the Powers restaurant. While in the city, Powers inquired of a police officer concerning the right of Fulks to prevent parking in the street, and was told that there was no ordinance or state law preventing such parking. Upon his return, he parked his car in front of the Fulks' residence, took his purchases into his place, and sat on the porch resting. He had in his pocket a revolver, which he testified he kept about his restaurant and carried at times for protection, especially when he had large sums of money upon his person, which he frequently did, and that at the time of the homicide he had in his pocket $112.75.
While Powers was sitting on his porch, Mrs. Fulks was sprinkling her yard, or the street. She asked Powers to move his car, which he said he would do in a little bit. In a short time, Fulks came out and took up the sprinkling, and he asked Powers to move the car. Powers got up and started across the street to where his car was parked, and, while he was going across, an altercation arose between them concerning the car. Both seemed to have become angry, and, when Powers met Fulks at the curb where the car was parked, blows were exchanged. There is much uncertainty and confusion as to who struck the first blow. The combat continued for some little time. Witness McMillin and his wife and daughter ran to the combatants, some of them carrying croquet mallets. There is much conflict as to whether they engaged in the combat as partisans of Fulks or as peacemakers, as claimed by McMillin. Powers retreated or was forced backwards, pursued by Fulks. Somewhere near the middle of the street, Powers drew his revolver from his pocket and fired the first shot. He seems to have continued withdrawing with Fulks pursuing him while three more shots were fired. As to when McMillin left the proximity of the principals there is sharp conflict. Powers testified that McMillin reached in his pocket and that Powers then drew his revolver and fired the first shot. There is some evidence that McMillin took a knife from his pocket, which he gave up to his daughter, and there was an offer to prove that McMillin stated afterwards that, if he had had his knife, he would have cut Powers with it. There is evidence that, after the McMillins joined the combat, croquet mallets were swinging in the air and blows were struck with them, and evidence that Powers was severely bruised about the head, shoulders, and arms and was bleeding from at least one severe wound on his head near the right temple. As is usual in such circumstances, no two of the witnesses agree as to what took place, and there is much conflict and confusion in the evidence.
Appellant sought to show by the evidence that he shot in self–defense. The jury was required to determine, among other things, whether the appellant reasonably and in good faith believed it was necessary to fire the fatal shot in order to protect himself from death or great bodily harm. This question could be determined only from a consideration of the testimony of the appellant, together with all the other evidence tending to show the situation as it presented itself to the appellant during the controversy. If any evidence which would throw light upon the transaction as it presented itself to him at the time was excluded, we cannot say that the appellant was not prejudiced thereby and that that item of evidence might not have been sufficient to change the result.
The appellant has saved and presented more than fifty questions involving the ruling of the court in admitting or rejecting evidence. To discuss each question in detail would unduly extend this opinion, and therefore we will endeavor to consider the questions in groups.
It is well settled that any fact may be put in evidence that will show bias, prejudice, or antagonism on the part of a witness toward the defendant.
One of the state's witnesses was Frank McMillin, who is referred to above as having taken an active part in the controversy. McMillin's evidence is in sharp conflict with the appellant's story of what transpired. McMillin claimed that he joined the encounter merely as a peacemaker and in an effort to separate the combatants. Appellant claimed that McMillin was an active and dangerous antagonist, allied with Fulks. If the jury believed McMillin's testimony, they must have believed that Powers was faced with but one antagonist, who was unarmed, and that appellant greatly exaggerated the apparent danger that confronted him at the time he fired the shots.
Appellant's counsel, on cross–examination, asked the witness McMillin numerous questions concerning statements made by him at times varying from a few minutes until several hours after the controversy. These questions assumed that he said that, if he had had his knife with him, he would have used it against Powers, and that, after his wife and daughter had pulled him away, he had said, “Let me loose and I will go out and cut the guts out of the son of a bitch,” meaning and referring to Powers. The witness denied making the statements. Appellant laid the foundation for impeachment and called numerous witnesses by whom he sought to show that these statements had been made. The court excluded the evidence, apparently on the ground that it was collateral to the issue. If McMillin made the statements, it would tend to show a feeling of antagonism towards Powers which the jury would have a right to consider upon the question of his credibility; and it would tend to show that he was a partisan of Fulks and antagonistic to Powers; that he entertained a feeling towards Powers which, if apparent from his activity in the combat, might reasonably have led Powers to believe that he was in danger of mortal injury. If McMillin was antagonistic to Powers during, and after, the combat, and his denial that he made the statements tending to show his antagonism was untrue, the jury should have known it. The impeaching testimony might have so discredited him in the eyes of the jury as to entirely change the result of the trial. Excluding the evidence was error prejudicial to the rights of the appellant.
Numerous questions propounded by appellant called for a conclusion of the witness. An illustration is the question propounded to the witness William Morgan: “As far as you could see or hear, there was no occasion for Mr. Powers to say that to Mr. Fulks—for him to come out in the street?” Another is the question propounded to Harry Lacey: “You did not expect him to have any trouble, did you?” Objections were sustained. These questions were asked on cross–examination. The latitude permitted must be determined by the court in the exercise of its discretion, and, where immaterial matter is excluded, it cannot be treated as an abuse of discretion.
The state was permitted to prove that the appellant did not have a permit to carry a pistol or revolver. It must be assumed that the jury considered this evidence for some purpose. We cannot say that it did not influence them in arriving at their verdict, and without it the verdict might not have been different. If Powers did not shoot in self–defense, a permit to carry a pistol would not help his defense, and, if he did honestly and reasonably believe that it was necessary to shoot in self–defense, the fact that he was carrying a pistol without a permit would not deprive him of the right to defend himself or to be acquitted upon that ground. The shooting, if unlawful, could not be justified by a permit to carry a pistol, and, if the shooting was necessary to protect the appellant from death or great bodily harm, he was not required to forego protecting himself and suffer death or great bodily harm merely because he was carrying his pistol without...
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LeFlore v. State
...The Court merely says the questions called for a conclusion and were excludible. The Court offered no reason and cited Powers v. State (1933), 204 Ind. 472, 184 N.E. 549. Powers is not in point at all. In that case this Court held it is not an abuse of discretion for the trial court to excl......