*1 699 petition prohibition for a The writ of and writ of mandate Jasper directed Circuit Court and the Honorable Judge Jasper Leopold, Court, Moses Circuit is denied. Lewis, Hunter, J., concur. C. J. and
Mote, J., opinion. dissents without J.,
Jackson, opinion. with dissents Reported 234 2d N. E. 492. Note. —
Dissenting Opinion Jackson, agree am J. I unable to with the conclusion majority opinion reached in the and dissent thereto. majority opinion predicated entirely herein is on the opinion rehearing
erroneous
rendered in the case of State
Whitley
rel.
ex
Brosman v.
(1964),
Circiut Court
245 Ind.
opinion
198
E.
3 which
N.
2d
vacated the
in State ex rel.
Whitley
Brosman v.
Circuit Court
The extension of the and tortured existent Whitley State ex rel. Brosman v. Circuit Court application 198 N. E. 2d its the case at bar disappointing surprise lawyers will come as a to the better the state. granted. petition for the writs should be
King of Indiana. 30,914. 7, 1968.] Filed March
[No. *2 McCain, Wayne, Robert S. appellant. for Fort Dillon, Attorney John General, J. Davis, Dep- and John F. uty Attorney General, appellee. appeal J. This is an in a criminal action in
Hunter, appellant, King, charged which the Jr., with, Herbert W. *3 of, degree. and convicted murder in second Trial the was ato jury, and a guilty Judgment of verdict was returned. was en- on tered the verdict and the to a sentenced term imprisonment. life of arraignment plea waived and entered of guilty omitting indictment, which, caption, to the as
reads follows: Jury County Allen, Indiana, “The Grand State upon oaths, present King, Jr., their that Herbert W. on the day County June, 1965, Allen, 11th in in the State feloniously, Indiana, unlawfully, purposely of ously, and malici- premeditation, but without did kill murder and Gene Faust, being, by unlawfully, Carl a human then and there maliciously, feloniously, purposely pre- and but without shooting against meditátion, at and Gene said Carl Faust, revolver, certain with a .38 caliber loaded and charged gun powder thereby mortally with and and bullet bullet, discharged Carl wounded said Gene Faust with said aforesaid, from mortal and shot as which wound the said died; Jurors, Carl Faust then and Gene upon there the Grand oaths, say charge aforesaid, as and their do King, unlawfully, Jr., said Herbert W. did then and there pre- maliciously, feloniously, purposely and without but Faust, meditation, kill and murder the said Gene Carl contrary aforesaid, manner form and to the form the the provided, case statute peace such made and dignity of the State Indiana.” pursuant filed of the fol- The indictment was the terms lowing statute: maliciously, premedi- “Whoever, purposely and but without
tation, being, any human is of murder the in the kills conviction, imprisoned degree, and on shall be second state graph 350, Repl.) during 169, prison (Acts 1905, Para- life. Ch. (1956 p. 584.)” Ind. Anno. Stat. 10-3404 § Under formed at trial burden the issues beyond prove that: of Indiana to a reasonable doubt State Appellant killed the decedent. 1. maliciously. killing purposely was done
2. duty the record of our to look to In our determination appellee, of Indiana. State most favorable to the evidence 472, The evi- Capps (1967), 248 N. 2d 794. manner be summarized when viewed dence follows: went his brother’s Herman
On June residence, single at 924 West Wash- apartment, a remodeled Wayne, there at or ington He arrived Street, Fort Indiana. Gayheart’s apartment is on Herman brother’s noon. around building. Lyons, on that Liz Mrs. of the lower left side right Appellant, on that apartment. lower lived in the date on left side upstairs apartment date, lived in an building porch building. front is a common There *4 running steps the front from the divider a small house. Faust, decedent, Carl Gene Gayheart had known
Herman During afternoon years. family three for about his Gayheart drank five brother date, Herman six-pack Lyons beers from a Liz beer. drank can of one beer. evening
About o’clock Gayheart, Lyons, Herman Liz Gayheart’s Kings Herman cousin and the on the front were Dorothy porch. Faust, decedent, wife of the and her two porch. children were also on front up Then Gene Faust parked drove in a 1953 Chevrolet and got it aon side street. He out of the car and came around to boy the front of the house. His steps ran little down the greet boy him and said hello. Then the him little called a upset name —either “souse” or a “louse.” This remark slapped and he decedent his son. child started bleed. up porch The decedent then came to the front and he and Lyons Liz had discipline a conversation boy. about exchanged by remarks Gay- Some were and between Herman fight Gayheart, heart and the decedent and a started. Herman during fight, course hit decedent on the head with fought couple beer bottle. two men for a of minutes.
Appellant then came over to where the two men were fighting up. and told point, them to break appellant At this gun Gayheart had a in his hand. Herman turned decedent got up and time, loose and backed on the divider. At that de- fight. appellant Lyons’ They cedent and started to were on Liz they porch. fighting, appellant side When were had his gun holding gun in his belt. He was not in his hand. De- appellant’s legs had locked cedent his arms around and he was shaking got gun appellant. Appellant out from under his going Gayheart he belt and said to shoot decedent. told stay appellant him shoot told they gun it. All witnesses stated out of heard fire. When they arrived, police asked who shot Gene Carl Faust and done it. told them had Gayheart specifically Herman testified as follows: struggled They around there two or three “A. minutes fighting, and then Gene has his arms locked around legs King’s there and his head Mr. down there at his *5 King shaking was knees and he was him. and Mr. getting gun had from under his belt. He his out get- right pants and stuck it under his there he was
ting going he to shoot him it back out and said was got over towards me and he said, him,’ up he he I ‘Don’t and and shoot gun put me on walked then. Q. gun Did he take the out of his belt? just he was
A. He out behind me when said he walked going to him. shoot Q. going ? Said to shoot who A. Gene.” Lyons Gay-
The Liz testified that the decedent and witness stopped fighting appellant appeared had when the heart gun trying get to in the door that the deceased appellant when the shot him.
Dorothy with a saw decedent Mae Faust testified she gun and walked his hand when he came out the middle door in ledge. over to middle Gayheart’s point gun, blank, at aimed the
And “Quit appellant said face when turned around and fighting your your out.” or I’ll blow brains question you man at response “Why this In did shoot a “Well, Appellant more or less you answered: time did?” got fear, I when overpowering me and out of so he was I shot him.” chance question presented appeal is whether central probative value and sufficient was sufficient
there therefrom, justify adduced inferences be reasonable necessary finding purpose aas element jury’s of malice and crime. issues, which be into two itself resolves follows: stated us, jury was re- Whether, record before
(1) acted quired as matter of law to find self-defense, and required jury as a law find matter of (2) was not If the jury self-defense, then was the appellant acted required, law, aas matter of to find that the evidence supports only manslaughter, a conviction for rather second-degree than murder.
Where one has taken the life another human be ing, and thereafter contends that he did so in self-de fense, he can be successful contention if: (1) fault, he acted without
(2)
place
right
he was
be,
where he had a
*6
(3)
danger
great
was
real
bodily harm,
of death or
apparent danger
good
or in such
as caused him in
great
faith
bodily
to fear death or
harm.
Bullard (1964),
90,
State
856;
245 Ind.
195 N.
2dE.
Hightire
(1966),
164,
v. State
247 Ind.
burden is
the State to show that defendant does
requirements.
not meet one or more of these
Dorak v.
(1915),
622,
State
183 Ind.
After the has made this determination in favor defendant, Court, State appeal: upon duty consider, weigh, . . has purpose determining evidence in the case for the whether any probative there is which a lant was substantial value from reasonably jury appel could have inferred that the charged” State, the offense Robinson v.
supra, 243 Ind. at (1967) 197. See also Easton v. State 6; Ind. 138 N. N. E. 2d Baker v. 236 Ind. 2d 641. evidence, out, From the clearly as above set was there sub probative justify stantial evidence of jury value to concluding appellant danger that was not in real great bodily harm, good death or or was not in faith great bodily in fear of death or appar- due to harm danger. Furthermore, substantial evidence ent there also probative jury justify in determin- value which would ing appellant act without fault. that did not testimony that decedent had was to the effect
There fight badly, viciously, in the with Her- beaten been almost shooting. Gayheart immediately preceded that man Faust, wife, testified that had Mrs. decedent’s fighting decedent, appellant’s demand, stopped with fighting began appellant with decedent. himself that thing last she remembered Mrs. Faust also said holding was seeing shot the decedent she heard the before might legs, decedent have been appellant’s and that on to get up. trying to probative clearly substantial evidence of constitutes
This wrongfully tending pro- value to show that fighting decedent, longing peace a disturbance of the and, which would any event, decedent was in no condition danger great or was in death to conclude he lead justified jury in con- bodily Upon facts, these harm. cluding appellant’s self-defense could not contention of stand. *7 Coryell v. State 130
Appellants’
the case of
cites
position.
case
support
his
In that
made effort defensive. on the he acted from that time that that after his unsuc- shows for the State school-house, he was forced to to leave the effort cessful possession child; abandon the of his was forced back into room, by the corner the and so set and assailed the decreased and his father and brother that further retreat impossible; that he was knocked or forced down on the unheeded; help floor and his cries for that after an un- by using successful himself from effort free his assilants pistol club, shot, down, his as a he fired the fatal when beating three men him.” Ind. at 57. Appellant support position also cites case Trogdon v. State 1. This Court said case: attacking party “. . . if the assault of the be of such a character, party assaulted, and so eminent as to warrant considering apparent surroundings, his situation and danger to believe that he is in of the loss of life or great bodily harm, he believe, may, does so delay, hand, without use such means as be at and rea sonably necessary seems to him repel appre to be danger attack, hended or and if death follows as a result thereof, if, homicide; he will not be of an unlawful case, danger appears real, such to be and is rea sonably fact, so, him fact, believed to be if such be the danger real, only apparent, was not but such guilty, would not render him fact appar necessity as ent employ well as the amount of necessary force attack, to resist an can be determined from standpoint
the the time, defendant at the and under all existing circumstances.” agree Trogdon. with the rule We stated in However, upon foregoing discussion, the basis applicable rule is not present case, operate and cannot appellant’s benefit. Having appellant’s determined that contention of self- rejected properly summarily defense was jury, we can dispose appellant’s contention that “the mere use of a deadly weapon, by itself, support and of cannot presumption of malice.”
Appellant supports position by arguing *8 that the use deadly of a weapon in self-defense does not evidence malice second-degree murder. crime of connection with the fact, argument
Clearly,
As matter of
that
is correct.
a
possibility
shown,
if self-defense is
eliminates the
any
at all.
that
crime has
committed
been
However,
it is
in Indiana that
use
well-established
likely
deadly weapon
person
a manner
an unarmed
jury
produce
is
for the
death
sufficient evidence
(1964),
Sparks
State
malice existed.
v.
conclude that
rehearing granted
469,
245, 195 N. E. 2d
on
245 Ind.
50,
748;
grounds, 245
2d
Warren v. State
Ind.
196 N. E.
other
108;
(1962),
508, 188 N.
2d
Miller v. State
243 Ind.
678,
Lewis, Arterburn and C. opinion. J., Mote, dissents *9 Opinion Dissenting majority opinion to the J. I wish to dissent Mote, points I in this cause to think the evidence decision. charge contemplation manslaughter. of evidence in a In the involved, exercise care and con- we must the kind here of point time of view at the from a reasonable sider the facts eyes charged, and or mind of the one and in the logic standpoint later cold to be determined from of not circumstances, people by Under stress of involved. one not pattern by those are without set who follow seldom extricating or cause for themselves pressure and have no need often, here, seemingly I Too as untenable situations. from upon judge really called others do not who are think those assigned to them. the task understand considering statutory of appeal, crime we are In this charged Appellant of be The indictment homicide. degree degree murder conviction murder. First re- second malice, degree proof premeditated whereas second quires requires purpose proof of and malice to conviction murder necessity degrees of the crime eliminate Other kill. mind of the accused. The state of proof of mind state prove, particular is difficult to instance another at mind, purpose premeditation, in- or state be. Such should inferred from kill, the facts and and malice be tent without reasonable the evidence shown circumstances “guess” satisfied mere of law is not rule This doubt. necessary- upon support generally relied of law the rule any degree, is murder in that one crime of elements conduct, own action responsible results of his or for the held concerning it, like the rule in- exceptions many has so dangerous should be exercised with rule and ference, particular caution. us, I do not find demonstrated now before the case
In purpose safely to kill and an inference warrant trial court and re- malice; hence, reverse the would I predicated This conclusion is a new trial. cause mand the weight given evidence, upon but to be pointing unerringly to the conviction of lack of evidence degree Reported 2d 465. N. E. murder. second Note. —