Bullard v. State

195 N.E.2d 856, 245 Ind. 190, 1964 Ind. LEXIS 195

• Court: Indiana Supreme Court
• Decided: February 3, 1964
• Docket: 30,441
• Status: Published

Opinions

Arterburn, J.

— The appellant was charged with murder in the first degree and upon trial, a verdict was returned of guilty of murder in the second degree. The defendant appeals and the sole ground therefor is the specification that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. This requires a review of the evidence submitted and a consideration thereof in light of the principle that on review we may consider only the evidence most favorable to the sustaining of the trial court’s judgment. Tait v. State (1963), 244 Ind. —, 188 N. E. 2d 537.

In doing so, we may not weigh the evidence nor determine the credibility of witnesses. Myers v. State (1960), 240 Ind. 641, 168 N. E. 2d 220; Denson v. State (1960), 240 Ind. 324, 163 N. E. 2d 749.

The record here reveals that the appellant and the decedent, Alphaeus Larvere Boyd, engaged in an altercation in the early hours of the night of December 18, 1962 at an American Legion post in Vigo County, Indiana. Two or three fights involving other persons had occurred at the place during the night. The decedent apparently started the fight by asking the defendant what he had said to witness Linda Turner. The evidence is that the deceased struck the defendant first and they were striking each other with their fists when several men rushed into the affray and separated the combatants. The fight was broken up. Both fighters regained their feet and the defendant then called the decedent a filthy name. The appellant says the decedent then started towards him with his fists doubled up; All other witnesses are silent as to any threatening gestures made by the decedent after the fight was stopped. It was at this time the defendant drew the gun from his pants pocket and fired point blank at the decedent who was standing within a few feet of him, mortally wounding the decedent. Thereafter the bystanders took the gun away from the appellant and he was later arrested and charged with the offense of murder in the first degree. It is contended that the appellant was acting in self-defense.

The appellant states that he understood that the decedent had carried a gun on a previous occasion. There is no contention that the decedent in the first fight had attempted to use a gun, nor that he had made any motion towards drawing a gun at the time he was shot by the appellant. There is no evidence that any gun was found upon the decedent.

The statute, Burns’ §10-3404, reads:

“Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and, on conviction, shall be imprisoned in the state prison during life.” Acts 1905, Ch. 169, Sec. 350, being §10-3404, Burns’ 1956 Repl.

The force that may be used in self-defense is limited to what is reasonably necessary to repel the attack, and deadly weapons cannot be used to repel a slight assault or a trespass amounting only to a misdemeanor. Ewbank’s Indiana Criminal Law, Vol. 2, §1395, p. 765.

The decedent was unarmed. There is no evidence that he attempted'to use any deadly weapon. If we assume that the decedent for the second time was the assaulting defendant after the first fight had ended and the parties were separated, still there is no showing that his self-defense required the taking of the life of the decedent. The evidence in this case does not even present facts which would cause the appellant to have an apparent fear of losing his own life by reason of the act on the part of the decedent.

It has been said:

“The fact alone that the prosecuting witness first struck the accused with his fists does not justify the latter in assaulting the former with a knife.” Walker v. The State (1894), 136 Ind. 663, 36 N. E. 356.

The jury is not compelled to accept the contention or testimony of the accused that he believed he had to use a gun in self-defense. It was for the jury to determine under the circumstances from all the evidence whether appellant had reasonable grounds to believe at the time it was necessary to shoot and kill his assailant in defense of himself. Swift v. State (1961), 242 Ind. 87, 176 N. E. 2d 117.

It has been said further:

“ ... It is certain, however, that the deceased was unarmed, and, at most, that, in their scuffle, he struck appellant with his fist. But, as a general rule, the law will not excuse one who repels a blow with the fist by stabbing his assailant.” Smith v. The State (1895), 142 Ind. 288, 297, 41 N. E. 595, 597.

The evidence was sufficient to support the verdiet of the jury.

The judgment of the trial cdurt is affirmed.

Landis, C. J., and Achor and Myers, JJ., concur. Jackson, J., concurs in result.