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Brannin v. State

46 N.E.2d 599, 221 Ind. 123, 1943 Ind. LEXIS 160
CourtIndiana Supreme Court
DecidedFebruary 17, 1943
DocketNo. 27,750.
StatusPublished
Cited by21 cases

This text of 46 N.E.2d 599 (Brannin v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brannin v. State, 46 N.E.2d 599, 221 Ind. 123, 1943 Ind. LEXIS 160 (Ind. 1943).

Opinion

Fansler, J.

The appellant was convicted of manslaughter.

At the request of the State, the court instructed the jury as follows:

“It is immaterial what attack William Guess had .formerly made upon Callie Sprague or what threat he had made, if at the time of the firing of the shot he was not then engaged in an attack upon Callie Sprague, from which it reasonably appeared to the defendant that Callie Sprague was in danger of déath or great bodily harm, as the defendant had no right to shoot to revenge some past attack, or to prevent a future attack then being threatened by mere words.”

This is an erroneous statement of the law. In Hughes v. State (1937), 212 Ind. 577, 585, 586, 10 N. E. (2d) 629, 633, we said: “It is not necessary that a person be violently assaulted, or assaulted at all, before he has the right to defend himself. A person has a right to act on appearance, and if he believes, in good faith and upon reasonable grounds, from the facts and circumstances as they appear to him at the time, that he is about to be assaulted, he has a right, if it seems reasonably necessary to him at the time, to use such force as will protect him from the assault.” This right also extends to the protection of one’s family.

*125 *124 The court refused to give an instruction correctly *125 stating the law tendered by the defense. It is contended that the substance of this latter instruction was covered by other instructions given, but a careful examination discloses that it was not. But if it had been given, or if the substance had been covered .by other instructions, it would not have cured the giving of the erroneous instruction above set out. “An erroneous instruction is not corrected by giving a correct one, unless the improper one is withdrawn.” Flick v. State (1935), 207 Ind. 473, 477, 193 N. E. 603, 605.

Judgment reversed, with instructions to sustain the motion for a new trial.

Note.—Reported in 46 N. E. (2d) 599.

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Bluebook (online)
46 N.E.2d 599, 221 Ind. 123, 1943 Ind. LEXIS 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brannin-v-state-ind-1943.