This is an appeal by the appellant from the judgment of the Circuit Court of Lawrence County, after a jury had convicted the appellant of the crime of assault and battery with intent to kill. In its verdict the jury recommended clemency.
After a pre-commitment investigation the appellant was sentenced to the Indiana State Prison for an indeterminate term of not less than two (2) year nor more than fourteen (14) years.
In his motion for a new trial the appellant urged three grounds: the finding of the court is contrary to law; that the finding of the court is not sustained by sufficient evidence; alleging that the evidence reflects the appellant fired upon the deceased after the deceased had fired upon the defendant on the defendant’s premises, and that the defendant acted in self-defense, and that the act on the part of the defendant was justifiable homicide.
The facts most favorable to the state are these: The appellant testified that when he and the people who were with him were accosted or threatened by the deceased, he was on his father-in-law’s premises. Appellant further testified that after he and the people with whom he had been were threatened by the deceased, defendant went home, armed himself and returned. When the deceased returned to where appellant was, the deceased reached into his car and pulled out a shotgun which the deceased had taken from the home of his brother, which the evidence shows was a 12-gauge shotgun with eight (8) shotgun shells. There was testimony that the deceased did not own a gun, nor did he take a .22 caliber rifle from the home of his brother.
There was no testimony that a shotgun was fired, and the investigating officer at the scene testified that the shotgun was still loaded, and eight (8) shotgun shells were found with it, and the gun had not been fired.
Testimony was conflicting as to who fired the first shot or *102as to whether deceased fired any shot at all. There was testimony that when the deceased ran from his car he dropped a shotgun which was found lying along side of deceased’s car.
There was further testimony that the deceased was found to have been shot in the back of the head. This was corroborated by the doctor who performed the autopsy. The defendant admitted that the deceased was running away from his direction when the appellant fired a second shot. Appellant further admitted that deceased had his back to him when he fired the second time. The testimony reads as follows:
“Q. Well, at the time you shot him, he had his back to you, didn’t he?
A. He might have had, yes.
Q. Well, he was shot in the back of the head, wasn’t he?
A. Yes.”
The stepson of the appellant and a witness for the appellant corroborated the above by his testimony that the deceased was running away from the defendant when he was shot as follows:
“Q. Did your father, step-father shoot at him while he was running?
A. I can’t remember that.
Q. Which direction was Bernard Mundy running, toward your father, step-father or away from him?
A. Away from him.”
Appellant admitted that he had been in trouble previous to the incident for using a deadly weapon.
“A. Yes sir. That was right after I got out of service and I started running around with this buddy of mine that I knew in service and well, we just run around one night drinking and he suggested we rob a place, and he, I think he even told me how to do it and I did. I robbed the street car operator in Indianapolis.
Q. What kind of weapon did you use?
A. Let’s see. I believe it was a .38 automatic.”
*103The evidence is not in conflict that the appellant shot and killed the deceased; nor has the appellant questioned that death caused by the use of a deadly weapon can support a presumption of malice and intent. Appellant’s main argument is that of self defense.
This court has held, on appeal, it will not weigh conflicting evidence, but will consider only that evidence most favorable to appellee. Bange v. State (1958), 237 Ind. 422, 146 N. E. 2d 811.
“Whether or not appellant herein shot and killed the deceased in self defense was an ultimate fact solely for the determination of the jury from the evidence in this case. Landreth v. State (1930), 201 Ind. 691, 171 N. E. 192, 72 A.L.R. 891; Ellis v. State (1899), 152 Ind. 326, 330, 52 N. E. 82; Buffkin v. State (1914), 182 Ind. 204, 207, 106 N. E. 362; King v. State (1918), 187 Ind. 220, 221, 118 N. E. 809; Myles v. State (1955), 234 Ind. 129, 124 N. E. 2d 205, 207 (Cert. denied (1955), 349 U. S. 932).”
It may have been proper for the appellant to arm himself after the threat by the deceased, and it may have been proper for the defendant to have fired the first shot acting in self defense. When, however, the deceased dropped his shotgun by his car, where it was found later, and ran unarmed away from the defendant and the defendant shot him in the back of the head while he was fleeing, the defendant was not acting in self defense at that time.
“One can not, after his enemy has cast his weapon and turned to fly, kill him and successfully claim to have been acting in self defense. This also disposes of the claim that the evidence is not sufficient to sustain the verdict.” Meurer v. State (1891), 129 Ind. 587, 589, 29 N. E. 392.
It is to be noted that after the jury returned its verdict the attorney for the appellant did not poll the jury nor make any motion to correct the form of the verdict, nor did he raise any question as to the verdict of the jury in his motion for a new trial. In his brief on appeal, however, appel*104lant states that the verdict of the jury recommends clemency which recommendation was not carried out by the court, and contends further that the trial court should have shown leniency when the jury recommended clemency in its verdict. The verdict of the jury reads as follows:
“We, the Jury, find the defendant, Paul White, Guilty of Assault and Battery with Intent to Kill, as charged in the indictment, and that his true age is 39 years. (Filling in the number of years you find the defendant to be.) The jury recommends clemency.”
The phrase in the verdict set forth above “the jury recommends clemency,” is in effect surplusage and of no effect in law. See Mahok v. State (1931), 202 Ind. 473, 174 N. E. 281.
In the case of Smith v. State (1965), 6 Ind. Dec. 694, 247 Ind. 126, 211 N. E. 2d 186, there was no objection at the time of the return of the verdict as to any alleged defect therein. There the court pointed out that one may not fail to make objection during the trial at the proper time when the alleged error, if any, is too late to remedy such alleged error, predicate and rely in his appeal on said error.
In the case of Callender v. State (1923), 193 Ind. 91, 138 N. E. 817, defendant was tried on two indictments returned by the grand jury. On one indictment the jury returned a verdict of not guilty; on the second, the jury returned a verdict finding defendant guilty as charged, assessed his punishment at a fine and imprisonment for a period of 60 days as follows:
“We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at a fine of $100 and that he be imprisoned in the Elkhart county jail for a period of sixty (60) days and we, the jury, petition your honor to suspend the jail sentence during good behavior.”
*105*104This is very similar to the case on appeal. The court held that the verdict of the jury is not uncertain and ambiguous. *105It further found that the clause in which the jury asked that the jail sentence be suspended was, in effect, merely a petition for clemency and in no sense a part of the verdict. The court stated: “It was improper to place this petition in the verdict, but it does not affect the verdict in any way and is not harmful to the appellant.”
The judgment of the lower court is affirmed.
Jackson, J., dissents with opinion. Mote, J., not participating.