Opinion
No. 27,750.
Filed February 17, 1943.
1. HOMICIDE — Instructions — Defense of Another — Right of Accused to Act on Appearance. — An instruction which told the jury that former attacks or threats made on a member of accused's family were immaterial, if, at the time accused fired the shot at the person who had made them, such person was not then engaged in an attack from which it reasonably appeared to accused that a member of her family was in danger of death or great bodily harm, as she had no right to shoot to revenge some past attack or to prevent a future attack then being threatened by mere words, was erroneous, since it omitted the right of accused to act on appearance and defend a member of her family if, in good faith, she believed an assault was about to be committed. p. 124.
2. ASSAULT AND BATTERY — Criminal Responsibility — Defenses — Self-Defense or Defense of Another — Right of Accused. — If a person believes in good faith, and upon reasonable grounds, from the facts and circumstances as they appear to him at the time, that he or a member of his family 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. p. 124.
3. CRIMINAL LAW — Trial — Instructions — Refusal to Give — Substance Not Covered by Other Instructions Given. — The refusal of the court to give an instruction correctly stating the law, the substance of which was not given in any other instructions, is error. p. 125.
4. CRIMINAL LAW — Trial — Instructions — Cure of Error — Necessity That Erroneous Instructions Be Withdrawn. — An erroneous instruction is not corrected by giving a correct one, unless the improper one is withdrawn. p. 125.
From the Vigo Circuit Court; John W. Gerdink, Judge.
Eva Brannin was convicted of manslaughter, and she appealed.
Reversed.
Charles C. Whitlock and Frank Hamilton, both of Terre Haute, for appellant.
George N. Beamer, Attorney General, and Norman E. Duke, Deputy Attorney General, for the State.
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 death 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 1, 2. 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.
The court refused to give an instruction correctly stating the law tendered by the defense. It is contended that the substance of this latter instruction was covered by 3, 4. 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.