Brattain v. State

Decision Date14 June 1945
Docket Number28051.
Citation61 N.E.2d 462,223 Ind. 489
CourtIndiana Supreme Court

Appeal from Hamilton Circuit Court; Cassius M. Gentry, Judge.

Fred E. Hines, of Noblesville, for appellant.

James A. Emmert, Atty. Gen., and Frank E. Coughlin, Asst. Atty Gen., for appellee.

STARR Judge.

Appellant was indicted for murder in the second degree. He entered a plea of not guilty and filed an answer alleging that at the time of the commission of the alleged offense he was temporarily insane. There was a trial by jury, resulting in a verdict of guilty as charged, and fixing his sentence at imprisonment in the Indiana State Prison during life. Motion for a new trial was overruled, and judgment was entered on the verdict.

On November 7, 1943, appellant and his mother, Margaret Brattain, a woman about 78 years of age, resided together on a farm near Clarksville, in Hamilton County. About noon of that day, Earl Burke, who lived close by, heard a scream and pleading, whereupon he drove to appellant's home, where he found the deceased lying in the yard, covered with blood and her clothing disarranged. The appellant, who was crouched over her, and seemed to have his hands on her face and neck yelled and ran behind the house. There was blood on the porch, scattered in the yard, and on a two-by-six board lying in the yard. In the kitchen the table was upside down, food was scattered about the room, and dishes were broken. The witness Burke, being fearful that the appellant might injure himself or the witness, drove to the home of one Roy Strite, about 40 or 50 rods from appellant's home. The appellant jumped on the running board of a passing automobile and, as it turned into Strite's driveway, jumped off and started away. Questioned by Strite, the appellant said that somebody over there was trying to kill his mother, and he asked Strite to help him, whereupon appellant and Roy Strite started for appellant's home. On the way they talked about crops and wages, and the appellant said, 'If I have to leave, why don't you buy them cows?' He further said, 'You wouldn't be hurt at $125 apiece on them.' Arriving at appellant's home, Strite approached the mother, who said, 'Roy, for God's sake, do something for me.' He asked her what was the matter, and who did it, and in appellant's presence she said: 'You know. Get him away from here.' Strite asked the appellant to get a comforter, but the appellant, saying that it was not his mother, refused to do so. Another witness, one Almyr Bradway, entered the house with appellant to get a cover. Inside, the appellant started to light a lamp, although it was about noon. The appellant insisted that it was not his mother, and said somebody threw her out of a car. Bradway then got a cover, and it was placed over the mother.

Strite then took appellant up to the cross roads, and, to keep appellant's mind occupied, suggested to him that they hide in the weeds along the road. The appellant said there were no weeds along there, none were there. Appellant stated that if his mother died, he would get a long 'stretch' over it, and that the sheriff would get them anyway. The sheriff arrived, and as they entered his automobile and were driving to appellant's home appellant said, 'I told you they would get us.' There was conversation concerning the time of day, one witness saying it was ten minutes to three, but the appellant insisting it was ten minutes to two, and it was in fact ten minutes to two.

The sheriff took the appellant to jail without difficulty, and then returned to appellant's home in search of a knife. Finding none, he went back to the jail and found a knife stained with human blood stuck in the top of appellant's boot. Shortly after he was taken to the jail the appellant fell asleep, and slept until about eight o'clock that evening.

The evidence discloses the deceased had suffered multiple contusions, lacerations, cuts and stab wounds about the head, neck, face, and body, and had multiple fractures of the ribs on both sides of the chest. She died about 11 o'clock P.M., on November 8, 1943, as the result of said injuries.

The evidence further discloses that the appellant habitually drank intoxicating liquors; that he had been uniformly kind to his mother, and had cared for and supported her. He made a written statement and later testified to the effect that he had drunk heavily of intoxicating liquor on the night of November 6th, and on the morning of November 7th had continued to drink intoxicating liquor, and that he had no recollection of anything that occurred from just before the noon meal until he woke up in jail that evening about eight o'clock.

The evidence is conflicting as to whether the appellant was sane or insane at the time of the commission of the alleged offense. The witness Strite, when asked, 'Was he intoxicated at the time, in your opinion,' answered, 'I wouldn't say so.'

Following the appellant's plea of insanity, the court, pursuant to Burns' 1942 Replacement, § 9-1702, Baldwin's 1934, § 2216, appointed three physicians to examine him, to which the appellant objected. These physicians examined the appellant on Monday prior to the trial and testified that in their opinion at the time of the examination he was of sound mind. One of the physicians, in response to a hypothetical question put to him embodying in substance the facts surrounding the commission of the alleged crime, stated that in his opinion the appellant was sane at the time the alleged crime was committed.

The sole error assigned on appeal is the ruling on the motion for new trial. There are twenty-three causes set out in said motion for a new trial, five of which relate to the giving of instructions tendered by the State, and seven to the giving of instructions by the court on its own motion. No specific objection to the giving of any of these instructions is shown in the record, therefore claimed error on this ground is not available. Rule 1-7, 1943 Revision.

As his first cause for new trial, the appellant contends that the court erred in refusing to give to the jury his tendered instruction No. 1, which was a peremptory instruction to find for the defendant. His 20th cause is that the verdict is contrary to law, and 21st, that the verdict of the jury is not sustained by sufficient evidence. Since appellant is only attempting to question the sufficiency of the evidence under each of these assignments, they will be considered together.

Appellant contends that there was no evidence tending to show that the appellant killed the deceased, nor was there any evidence tending to show that the appellant unlawfully, feloniously, purposely and maliciously did any act which caused the death of the deceased, nor that the appellant had sufficient mental capacity to form an intent to commit the crime charged. It is our opinion that there was ample evidence to go to the jury on the question as to who killed the deceased. The undisputed evidence shows that the deceased sustained extensive cuts, lacerations and stab wounds, and that a knife stained with human blood was found stuck in the boot of appellant; also, that the appellant was seen stooping over said deceased when she was lying in the yard suffering from her various wounds, and that his arms and hands were covered with blood. The undisputed evidence further shows that when the deceased was asked who did it, in the presence of the appellant, she said: 'You know. Take him away.' The fact as to who...

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