Bimbow v. State, No. 2--873A187

Docket NºNo. 2--873A187
Citation315 N.E.2d 738, 161 Ind.App. 338
Case DateAugust 29, 1974

Page 738

315 N.E.2d 738
161 Ind.App. 338
Richard BIMBOW, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 2--873A187.
Court of Appeals of Indiana, Second District.
Aug. 29, 1974.

[161 Ind.App. 339]

Page 739

George A. Purvis, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., David A. Miller, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Defendant-Appellant Richard Bimbow (Bimbow) appeals from a trial court conviction of Assault and Battery with Intent to Kill, claiming insufficiency of evidence as to specific intent, failure of proof as to sanity, and error in denying his motion to employ an additional psychiatrist of his own choosing at State expense.

We affirm.

FACTS

The facts in evidence most favorable to the trial court's verdict are:

On October 27, 1971, at approximately 12:45 P.M., Bimbow walked into the Harbor Light Mission Center and demanded [161 Ind.App. 340] money from the director of the Center's Alcoholic Rehabilitation Program, Mr. Donald Diercks (Diercks). Bimbow had been a participant in the program.

Page 740

Upon being informed by Diercks that he did not 'have any money coming', Bimbow's response was, 'I'm going to kill you.' Pulling a knife from his pocket, he assaulted Diercks cutting him from the left ear to the throat and stabbing him in the right arm.

After a struggle Bimbow was finally subdued by five men who were participants in the Center's program, while two other participants ran to the street and hailed a passing police car. Bimbow, still struggling, was handcuffed and placed under arrest.

At the trial on December 14, 1972, two policemen testified they observed a paring knife lying a few feet from Bimbow, the blade covered with blood, and that Bimbow was agitated and smelled of alcohol.

Diercks also identified the knife as the weapon used in the assault and Bimbow as his assailant.

Evidence presented by Bimbow indicated that he had been a patient in a mental institution for sixteen years and had been released only a few months prior to this episode. He admitted being an alcoholic and had consumed 'a couple of drinks' before going to the Center on October 27, 1971. He did recall going to the Center because he needed money to report for a job and that he got angry and hit Diercks, but did not remember having a knife. He also stated his memory of the accident was vague due to a beating he allegedly received from the five men at the Center who subdued him after his assault on Diercks.

Bimbow entered a plea of insanity and pursuant to I.C.1971, 35--5--2--2, Ind.Ann.Stat. § 9--1702 (Burns Supp.1973), the trial court appointed two psychiatrists to examine Bimbow to ascertain his sanity at the time of the commission of the crime as well as his competency to stand trial.

[161 Ind.App. 341] At the competency hearing prior to trial both psychiatrists testified that Bimbow had sufficient comprehension to understand the charges against him, the proceedings of the court, and the ability to assist his counsel in preparation of a defense. The trial court found Bimbow to be sufficiently competent to stand trial.

Also prior to trial, Bimbow filed a Motion to Appoint Additional Psychiatrists, which was subsequently overruled by the Court.

Bimbow was found guilty by the trial court of Assault and Battery with Intent to Kill and received a sentence of not less than two nor more than fourteen years.

Bimbow's subsequent Motion to Correct Errors was granted as to the issue of his sanity at the time of the alleged offense (previously the two psychiatrists had only testified as to his competency to stand trial). He again filed a Motion for Permission to Employ Medical Experts which was overruled.

At the sanity hearing of March 28, 1973, the same two court appointed psychiatrists appeared as witnesses and testified as to the sanity of Bimbow at the time of the assault on Diercks. The court found Bimbow sane at the time of the commission of the crime and guilty as charged and reinstated the sentence entered at the first trial.

ISSUES

ISSUE ONE.

Was the evidence insufficient to support a conviction of Assault and Battery with Intent to Kill because Bimbow was incapable of forming the specific intent to kill?

ISSUE TWO.

Is the evidence sufficient to support the trial court's determination that Bimbow was sane at the time the offense was committed and its determination that Bimbow had sufficient comprehension to stand trial?

[161 IND.APP. 342]

Page 741

ISSUE THREE.

Did the trial court err in overruling Bimbow's motions for the appointment and employment of additional psychiatrists and medical experts?

AS TO ISSUE ONE, Bimbow contends that the State failed to prove that he entertained a specific intent to kill due to his history of mental illness, alcoholism, his admission to drinking at the time of the offense, and the superficial injuries inflicted upon Diercks.

The State argues that the degree of intoxication at the time of the crime is a question of fact for the trial court to determine and that the severity of the inflicted wounds has no bearing upon the specific intent of the assailant to inflict those wounds.

AS TO ISSUE TWO, Bimbow contends that the State presented insufficient evidence at the two sanity hearings to prove beyond a reasonable doubt that he was sane.

The State argues that the issue of legal insanity is a question of fact to be determined by the trial court, and based upon the evidence presented at the two mental competency hearings, the court properly found Bimbow to be sane at the time of the offense.

AS TO ISSUE THREE, Bimbow contends that the trial court abused its discretion by overruling his motions for appointment of medical experts of his own choosing due to Bimbow's long history of mental illness and discharge from a mental hospital only a few months before the crime.

In response, the State argues that the trial court complied with the statutory requirements of I.C.1971, 35--5--2--2, Ind.Ann.Stat. § 9--1702 (Burns Supp.1973) and contends that Bimbow has failed to show how his rights were prejudiced by the court's rulings.

[161 Ind.App. 343] DECISION

ISSUE ONE.

CONCLUSION--It is our opinion that there was substantial evidence of probative value that Bimbow was capable of forming the specific intent to kill necessary to support a conviction of Assault and Battery with Intent to Kill.

I.C.1971, 35--13--2--1, Ind.Ann.Stat. § 10--401a (Burns' Supp.1973), defines 'assault and battery with intent to kill' as follows:

'Assault or assault and battery with intent to kill.--Whoever with intent to kill another human being perpetrates an assault or assault and battery upon the other human being, shall upon conviction be imprisoned in the state prison for not less than two (2) nor more than fourteen (14) years.'

Bimbow, recognizing his unfortunate affliction, maintains he was intoxicated to such an extent that he was incapable of forming a specific intent to kill Diercks.

Intoxication may be, it is true, a defense to a crime involving specific intent, but only when the accused is so intoxicated as to render him incapable of forming the required specific intent. Preston v. State (1972), Ind., 287 N.E.2d 347; Storie v. State (1970), 254 Ind. 301, 258 N.E.2d 849.

In Davis v. State (1968), 249 Ind. 373, 232 N.E.2d 867, the rule was stated by Chief Justice Arterburn to be:

'Voluntary intoxication is not a defense in a criminal proceeding and does not excuse or palliate crime. It is only where intoxication has occurred to the...

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8 practice notes
  • Johnson v. State, Nos. 9 and 22
    • United States
    • Court of Appeals of Maryland
    • January 7, 1982
    ...v. Dillon, 93 Idaho 698, 471 P.2d 553, 560 (1970), cert. denied, 401 U.S. 942, 91 S.Ct. 947, 28 L.Ed.2d 223 (1970); Bimbow v. State, 161 Ind.App. 338, 315 N.E.2d 738, 743-44 (1974); State v. Burnett, 222 Kan. 162, 563 P.2d 451, 453-55 (1977); State v. Square, 257 La. 743, 244 So.2d 200, 209......
  • Murphy v. State, No. 975S245
    • United States
    • August 10, 1976
    ...that the court must appoint at the State's expense additional psychiatrists of defendant's choosing.' Bimbow v. State, (1974) Ind.App., 315 N.E.2d 738, ISSUE IV By these assignments, the defendant contends that the court erred in denying his pre-trial and post-trial petitions for treatment ......
  • Keith v. Mendus, No. 45A05-9409-CV-357
    • United States
    • Indiana Court of Appeals of Indiana
    • February 12, 1996
    ...by the trier of fact. Haskell v. Peterson Pontiac GMC Trucks (1993), Ind.App., 609 N.E.2d 1160, 1163, reh'g. denied; see Pitts, 315 N.E.2d at 738. Thus a party who seeks review of denial of a motion for summary judgment must do so ordinarily by way of interlocutory appeal in accordance with......
  • State v. McVey, No. 84-479
    • United States
    • United States State Supreme Court of Iowa
    • November 13, 1985
    ...1984) (where mental condition does not amount to legal insanity, the diminished capacity may negate specific intent); Bimbow v. State, 161 Ind.App. 338, 315 N.E.2d 738 (1974) (recognizing defense to specific intent crime); State v. Dargatz, 228 Kan. 322, 614 P.2d 430 (1980) (evidence of men......
  • Request a trial to view additional results
8 cases
  • Johnson v. State, Nos. 9 and 22
    • United States
    • Court of Appeals of Maryland
    • January 7, 1982
    ...v. Dillon, 93 Idaho 698, 471 P.2d 553, 560 (1970), cert. denied, 401 U.S. 942, 91 S.Ct. 947, 28 L.Ed.2d 223 (1970); Bimbow v. State, 161 Ind.App. 338, 315 N.E.2d 738, 743-44 (1974); State v. Burnett, 222 Kan. 162, 563 P.2d 451, 453-55 (1977); State v. Square, 257 La. 743, 244 So.2d 200, 209......
  • Murphy v. State, No. 975S245
    • United States
    • August 10, 1976
    ...that the court must appoint at the State's expense additional psychiatrists of defendant's choosing.' Bimbow v. State, (1974) Ind.App., 315 N.E.2d 738, ISSUE IV By these assignments, the defendant contends that the court erred in denying his pre-trial and post-trial petitions for treatment ......
  • Keith v. Mendus, No. 45A05-9409-CV-357
    • United States
    • Indiana Court of Appeals of Indiana
    • February 12, 1996
    ...by the trier of fact. Haskell v. Peterson Pontiac GMC Trucks (1993), Ind.App., 609 N.E.2d 1160, 1163, reh'g. denied; see Pitts, 315 N.E.2d at 738. Thus a party who seeks review of denial of a motion for summary judgment must do so ordinarily by way of interlocutory appeal in accordance with......
  • State v. McVey, No. 84-479
    • United States
    • United States State Supreme Court of Iowa
    • November 13, 1985
    ...1984) (where mental condition does not amount to legal insanity, the diminished capacity may negate specific intent); Bimbow v. State, 161 Ind.App. 338, 315 N.E.2d 738 (1974) (recognizing defense to specific intent crime); State v. Dargatz, 228 Kan. 322, 614 P.2d 430 (1980) (evidence of men......
  • Request a trial to view additional results

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