165 Ind. 112 | Ind. | 1905
Upon a charge of assault and battery with, intent to kill, appellant was tried and convicted.
The questions not waived arise upon the action of the court in giving, and in refusing to give, certain instructions to the jury.
As touching the right of self-defense under the facts above stated, appellant at the proper time requested the court to instruct the jury in substance as follows: If you shall believe from the evidence that the accused was not wholly free from fault at and immediately prior to the time of the alleged commission of the assault and battery complained of in the affidavit and information in this cause,
The court instructed the jury that it was not improper for the defendant to speak to the girl as she was going to the court-house, concerning her testimony, if the character of the conversation and manner of approach were proper; but if the defendant’s purpose in seeking a conversation was to dissuade her from appearing as a witness for her father, or to pervert her testimony, the defendant had no right to interfere with her by threats or otherwise; thus advising the jury that it might find, if the evidence warranted, that the defendant was a wrongdoer in his attempt to secure an interview with the witness.
The instruction refused is based upon the evident theory that although the defendant was the first wrongdoer by untimely, or in an improper manner, or for an unlawful
The instruction foreshadows a familiar principle of the law of self-defense, and one of importance to the defendant under the evidence. Story v. State (1885), 99 Ind. 413; Gillett, Crim. Law (2d ed.), §405, and cases cited. The evidence, without dispute, is to the effect that after the momentary altercation on the sidéwallc, upon the approach of the prosecuting witness, the defendant hastily left the girl and her companions, and retreated back into the alley, and the prosecuting witness in pursuit had gone not less than thirty feet into the alley after him before the shooting began. The court, having pointed out to the jury how they might find the defendant guilty of a wrong in accosting the witness on her way to the trial, and the effect of that wrong upon his right of self-defense, should, under the evidence, have gone further, and instructed them as to the effect a bona fide effort on the part of the defendant to right himself would have upon his subsequent right to protect himself. For however unjustifiable the conduct of the defendant in what he did and said on the sidewalk, if he voluntarily abandoned the attempted interview, and in good faith endeavored to retreat from the place and avoid further difficulty, and in so doing was pursued by the prosecuting witness with a dangerous and deadly weapon, under circumstances that made it reasonably manifest to him that he was in immediate danger of being killed, or of receiving serious bodily injury, he was in .the latter place as much entitled to defend himself as if he had not been in the wrong in the former.
We have not deemed it important, in view of the conclusion reached upon the instruction refused, fully to consider the instructions given to which exceptions have been reserved; but from a casual reading it is obvious that the thirteenth, fourteenth and sixteenth were loosely drawn, and contain inaccurate and inadequate expressions in defining the law of self-defense.
Judgment reversed, with instructions to grant appellant a new trial.