"In this state the rule is deeply entrenched in the case law that a witness, including a party to the action who takes the stand as a witness in his own behalf, may be required on cross-examination, as affecting his credibility, to answer as to previous convictions, whether such convictions were of felonies or misdemeanors. Among others which could be cited, see the following: Niemeyer et al. v. McCarty et al. (1943), 221 Ind. 688, 701, 51 N.E.2d 365; Fritch v. State (1927), 199 Ind. 89, 155 N.E. 257; Parker v. State (1894), 136 Ind. 284, 288, 35 N.E. 1105; Vancleave v. State (1898), 150 Ind. 273, 49 N.E. 1060; Dotterer v. State (1909), 172 Ind. 357, 365, 88 N.E. 689; Neal v. State (1912), 178 Ind. 154, 158, 98 N.E. 872; Pierson v. State (1919), 188 Ind. 239, 244, 245, 123 N.E. 118; Bolden v. State (1927), 199 Ind. 160, 163, 155 N.E. 824; Way v. State (1946), 224 Ind. 280, 284, 66 N.E.2d 608; Chambers v. State (1946), 232 Ind. 349, 111 N.E.2d 816; Mitz, Jr. v. State (1954) 233 Ind. 537, 543, 121 N.E.2d 874. "In the Neal v. State case, supra, it was held that it rested within the sound discretion of the court as to whether the matter inquired about tended to affect the credibility of the witness.
However, Abel was decided not upon the basis that the instruction placed the burden upon the defendant, but that it constituted an impermissible comment upon the defendant's failure to testify. Nor does Parker v. State, (1894) 136 Ind. 284, 35 N.E. 1105 support appellant's position. There, the instruction explicitly stated that "the failure of either of the defendants to account for his whereabouts . . . may be properly considered" by the jury. The Court in that case held that this instruction constituted reversible error in that the failure of the defendants to explain their whereabouts could not properly be considered as a circumstance tending to prove guilt.
This Court has, however, stated that Article 7, § 1, of the Indiana Constitution, which vests judicial power in the court, should be invoked "to prevent a travesty on justice." Holloway v. State, (1976) 170 Ind. App. 155, 352 N.E.2d 523, 529, quoting Parker v. State, (1894) 136 Ind. 284, 35 N.E. 1105. In Lowery v. State, (1925) 196 Ind. 316, 322, 148 N.E. 197, this Court stated:
If self defense is an issue in the case, then the burden of proof thereon is upon the State, just as with the other issues, and under such circumstances the defendant is not required to satisfy the trier of fact that the homicide was justifiable, rather it is enough if the evidence upon that issue raised a reasonable doubt. Hill v. State, (1937) 212 Ind. 692, 699-700, 11 N.E.2d 141; Males v. State, (1927) 199 Ind. 196, 202-203, 156 N.E. 403; Dorak v. State, (1915) 183 Ind. 622, 109 N.E. 771; Clark v. State, (1902) 159 Ind. 60, 64 N.E. 589; Parker v. State, (1894) 136 Ind. 284, 35 N.E. 1105; Trogdon v. State, (1892) 133 Ind. 1, 32 N.E. 725. Self defense is not an issue in every homicide case. It may be injected by direct evidence or by inference reasonably drawn from any evidence of probative value.
See Dorak v. State (1915), 183 Ind. 622, 624, 109 N.E. 771 where the court set out the following: "In Parker v. State (1894), 136 Ind. 284, 292, 35 N.E. 1105, it is said: `In criminal cases, the entire burden is upon the State from the beginning, and the accused is not bound to explain anything, and his failure to do so can not be considered as a circumstance tending to prove his guilt.'" See also: Hill v. State (1937), 212 Ind. 692, 11 N.E.2d 141; Biggs v. State (1929), 201 Ind. 200, 167 N.E. 129.
This theory of the case as presented by the evidence summarized above was not covered in any instruction given by the court. Appellant was not only entitled to have his theory of the case presented to the jury, if there was any evidence to support it, but "It is reversible error for a trial court to refuse to 1. give a correct instruction requested by an accused unless a requested instruction is substantially covered by another instruction. Carpenter v. State (1873), 43 Ind. 371; Parker v. State (1894), 136 Ind. 284, 35 N.E. 1105; Aszman v. State (1890), 123 Ind. 347, 359, 24 N.E. 123; Mitchell v. State (1923), 193 Ind. 1, 138 N.E. 507." Eastin v. State (1954), 233 Ind. 101, 104, 117 N.E.2d 124.
". . . In Parker v. State (1894), 136 Ind. 284, 288, 35 N.E. 1106, appears the following: 'The appellants, on the trial of the cause, testified in their own behalf, and the State, on cross-examination, over their objection, was 10. permitted to ask them as to certain arrests and prosecutions against them occurring in the past, for the purpose of discrediting their testimony.
' 70 C.J. Witnesses, § 921, p. 762; City of South Bend v. Hardy (1884), 98 Ind. 577, 49 Am. Rep. 792; Kell v. State (1924), 194 Ind. 374, 376, 377, 142 N.E. 865; Pierson v. State (1919), 188 Ind. 239, 243, 244, 245, 123 N.E. 118. "Our court has frequently held that, `Any fact tending to impair the credibility of the witness by showing his interest, bias, ignorance, motives, or that he is depraved in character, may be shown in cross-examination, but the extent to which such cross-examination may be carried is within the sound discretion of the court. City of South Bend v. Hardy, supra; Parker v. The State (1894), 136 Ind. 284, 35 N.E. 1105; Bessette v. The State (1885), 101 Ind. 85; Blough v. Parry (1896), 144 Ind. 463, 479, 480, 482, 40 N.E. 70, 43 N.E. 560; Spencer v. Robbins (1886), 106 Ind. 580, 585, 586, 5 N.E. 726; Houk v. Branson (1896), 17 Ind. App. 119, 122, 45 N.E. 78; Hinchcliffe v. Koontz (1889), 121 Ind. 422, 425, 23 N.E. 271; § 2-1725, Burns' 1946 Replacement.' "`. . . The general rule of law is, that when a witness is cross-examined on matters collateral to the issues, his answer can not be subsequently 3. contradicted by the party putting the question.
It is reversible error for a trial court to refuse to give a correct instruction requested by an accused unless a requested instruction is substantially covered by another 2. instruction. Carpenter v. State (1873), 43 Ind. 371; Parker v. State (1894), 136 Ind. 284, 35 N.E. 1105; Aszman v. State (1890), 123 Ind. 347, 359, 24 N.E. 123; Mitchell v. State (1923), 193 Ind. 1, 138 N.E. 507. The State insists that instruction number 19 was correctly refused because of the use of the word "upon" in the 3, 4. first sentence instead of the word "beyond," and the use of the word "defense" instead of "offense."
City of South Bend v. Hardy, supra. Parker v. The State (1894), 136 Ind. 284, 35 N.E. 1105; Bessette v. The State (1885), 101 Ind. 85; Blough v. Parry (1896), 144 Ind. 463, 479, 480, 481, 482, 40 N.E. 70, 43 N.E. 560; Spencer v. Robbins (1886), 106 Ind. 580, 585, 586, 5 N.E. 726; Houk v. Branson (1896), 17 Ind. App. 119, 122, 45 N.E. 78; Hinchcliffe v. Koontz (1889), 121 Ind. 422, 425, 23 N.E. 271; § 2-1725, Burns' 1946 Replacement. The cross-examination of a party for the purpose of discrediting his evidence is governed by the same rules as govern the cross-examination of any other witness.