188 Ind. 533 | Ind. | 1919
— Appellant was indicted for murder, tried by a jury, and convicted of manslaughter.
Pie complains of the court’s instructions Nos. 7, 9 and 10 on the subject of self-defense, because they base appellant’s right to self-defense on his being “in a place where he had a right to be so far as his assailant was concerned.” Appellant’s counsel says that.none of these instructions takes into account the proposition that a person, in a place where he has no right to be so far as his assailant is concerned, may be suddenly attacked
Appellant’s counsel says that there was evidence from which the jury might infer that- appellant was knowingly where he had no right to be, but that this evidence was only shadowy and not legally conclusive, and that therefore these instructions misled the jury into thinking that appellant could never have the right of self-defense when in a place where he had no right to be, so far as his assailant is concerned.
Thus far the instruction is correct and is favorable to appellant, for he attempted to show that some of the state’s witnesses had made statements out of court at variance to their testimony on the stand.
The evidence shows that appellant was a track-walker on 'a railroad in the steel company’s plant at
The above circumstances were testified to by several witnesses with such slight variation in details as to show truthfulness and disinterestedness. Even appellant’s own testimony, when taken all together, does not sharply contradict this. True, he claims it was all one encounter, but he admits that he was away from decedent three or four or five feet at the time between the first encounter and the second, when he drew his knife and struck the fatal blow, but claims the decedent was holding him with his left hand and striking with his right. In this connection, it is important to note that the evidence shows that appellant is thirty-six years old, five feet five inches tall, and weighs from 150 to 152 pounds; that decedent was twenty-nine years old, five feet eight inches tall, and weighed about 136 pounds.
We have thus touched upon the main points in the evidence to throw light on the previous discussion of error, and also that it may be kept in view in what we shall say on another error claimed by appellant.
In the course of the cross-examination, appellant was asked: Q. “After you got loose from Mr. Spradley (decedent) what did you do?” ' A. “I saw myself all
There being no reversible error in the record, the judgment of the trial court is affirmed.
Note. — Reported in 125 N. E. 27. See under (1) 21 Cyc 822.