¶1Dissenting Opinion
¶2I agree with the majority opinion that if the evidence and the reasonable inferences therefrom were without conflict and led to but one conclusion and the jury reached the opposite conclusion we should reverse the verdict as contrary to law. Byassee v. State (1968), 251 Ind. 114, 239 N. E. 2d 586; Compton v. State (1968), 250 Ind. 103, 235 N. E. 2d 181; Gunder v. State (1968), 250 Ind. 689, 238 N. E. 2d 655; Heglin v. State (1956), 236 Ind. 350, 140 N. E. 2d 98; State v. Kubiak (1936), 210 Ind. 479, 4 N. E. 2d 193. However, I think a reasonable inference from the evidence supports the jury verdict and, therefore, the verdict should be affirmed.
¶3The crucial question is what occurred after the appellant came out from behind the bar and retrieved his club. If the appellant after retrieving the club was not in any apparent danger of assault from the victim but, on the contrary, the appellant became the aggressor at that point, then appellant was not acting in self-defense, regardless of what occurred earlier between the two men. Heglin v. State, supra. There*584fore, the issue in this case is whether the evidence and reasonable inferences therefrom are without conflict and show, as appellant claims, that the victim was advancing on appellant with a broken beer bottle in his hand.
¶4The appellee presented four witnesses in its case-in-chief, who were in the tavern at or around the time of the incident. Not one of them testified that they saw victim with a broken beer bottle advancing on the appellant. One of the four witnesses, Ralph Wasson, testified that he was not present when any fighting took place. He did see the victim reach across the bar with his hand after the appellant but he did not think either the appellant or the victim was angry at that point. Lee Rouse was in the tavern and testified that he heard the victim cursing and arguing with the appellant. He saw the victim twice reach across the bar with his hand to grab at appellant and he also saw the victim then reach over the bar with a beer bottle in his hand. At the same time he saw the victim reach across the bar with a bottle in his hand he saw appellant hit the victim with a club he had in his hand. Appellant lost control of the club and it went flying across the room. This witness did not see, and could not testify concerning, the events which occurred after appellant came out from behind the bar and retrieved his club. He testified that he could not swear that the bottle was broken or whole but he did not hear the tinkle of broken glass until after the fight was over when appellant’s wife was sweeping a broken bottle up off the floor.
¶5Ruby Crumbaugh was sitting in the tavern drinking and saw appellant reach across the bar with a beer bottle in his hand. She stated the beer bottle was broken at that time but this is inconsistent with the majority view that the victim broke the beer bottle as appellant was coming out from behind the bar. This witness did not know what happened after the appellant came out from behind the bar because she did not see the incident.
¶6Of the first three “eye-witnesses” not one even saw the events which occurred after appellant came out from behind *585the bar. Alvin Rouse, Lee Rouse’s son, was also in the tavern drinking at the bar. He heard the commotion and he looked down the bar and saw the victim reach over the bar after the appellant. Then he did not see anything else until he saw the appellant come out from behind the bar. He testified that the victim was standing by the jukebox with a beer bottle in his hand like he was going to hit appellant and “appellant came up to him and appellant swung first.” (Emphasis added.) This witness testified that he could not say that the bottle was broken when the victim had hold of it. Therefore, of the State’s four witnesses who were in the tavern near or about the time of the incident not one testified that they saw the victim with a broken beer bottle in his hand advancing toward the appellant. On the contrary, Alvin Rouse’s testimony implies that the appellant walked up to the victim and hit him first with the club.
¶7The appellant and his wife were the only two eye-witnesses who testified for the appellant and due to the obvious potential bias of these two witnesses the jury was not required to believe their version of the events surrounding the killing. Even these two witnesses provide evidence which supports the jury verdict. Appellant’s pre-trial statement admitted in evidence as Ex. A, said in part:
“I told Whitey that he was going to have to leave and he grabbed a bottle from the bar and swung it at me. I backed up when he swung at me and he then set down and I thought that it was all over. Whitey kept calling me a dirty rotten mother-fucker and picked up the bottle and swung at me again. I then pulled a club from behind the bar and hit Whitey in the head with it. The club flew out of my hands and over into the barroom. Whitey started to get up and I went around the bar and picked up the club and hit him in the head again with it. He was knocked out at this time.
“After I had hit Whitey the first time, it did not knock him down. He was still on his feet and was standing with the bottle in his hand when I hit him the second time.”
¶8This statement given the day after the incident and before the victim had died, does not say that the victim was advancing *586on appellant with a broken beer bottle. The wife at one point testified as follows:
“Q. After appellant came out from behind the bar did Moore stay still or did he move?
A. No, he moved.
Q. Where did he move, in what direction?
A. Well he moved at first I think he backed up just a little bit. I don’t know if this was before he got hit that he backed up or whether he backed up after he got hit.”
¶9There was also evidence that appellant and the victim had been in a fight once before and that the appellant had a reputation for being willing to fight.
¶10It seems clear that on this evidence the jury could reasonably have found that: the victim’s behavior in the tavern angered appellant and when the victim swung a beer bottle at appellant, appellant hit him with a club, losing the club in the process. After he came out from behind the bar and retrieved the club appellant became the aggressor and walked over to the victim v/ho had a bottle in his hand, but was not advancing on the appellant, and appellant hit him in the head with the club. This single blow, either because the club was an especially lethal weapon or because of the ferocity of the blow, fractured the victim’s skull and as a result of the injury the victim died.
¶11The crucial issue in the case is whether the evidence would permit a reasonable inference that the appellant at the time he hit the victim did not perceive that he was in any danger and was in fact the aggressor. I think the evidence and the reasonable inferences therefrom are in substantial enough conflict to preclude this Court from disturbing the jury verdict.
¶12Note. — Reported in 271 N. E. 2d 123.