Cook v. State

CourtSupreme Court of Indiana
Citation258 Ind. 667,31 Ind.Dec. 558,284 N.E.2d 81
Docket NumberNo. 1271S366,1271S366
PartiesLarry Owen COOK, Appellant, v. STATE of Indiana, Appellee.
Decision Date28 June 1972

Lorin H. Kiely, and Phillip L. Kiely, Evansville, for appellant.

Theo. L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.

GIVAN, Justice.

Appellant was charged by affidavit with second degree burglary. Trial by jury resulted in a verdict of guilty of the lesser included offense of entering to commit a felony. Appellant was sentenced to the Indiana State Prison for not less than one nor more than five years.

The record reveals the following:

Mary Monarch, owner of the Monarch Lunch Room in Evansville, Indiana, locked the premises at about 6:00 P.M. on January 28, 1971. At approximately 1:00 A.M. on January 29, 1971, Mr. and Mrs. Robert Wayne Smith, who were in a shop across the street, saw a person later identified as the appellant break the glass in the door of the Monarch Lunch Room.

In response to a call by Mr. and Mrs. Smith, Police Officers Althoff and Stembridge arrived and apprehended the appellant standing behind the counter in the lunch room. At the time of his arrest appellant was wearing gloves and had a long screw driver. The cigarette machine on the premises had been pried open and the coin box emptied.

Prior to trial appellant requested a psychiatric examination. In response to this request the court appointed two psychiatrists to examine appellant. Both psychiatrists reported that appellant was competent to stand trial.

Appellant first contends that the trial court erred in failing to conduct a hearing prior to trial on the issue of appellant's competency to stand trial and further that the court also erred in failing to make a judicial finding and determination of appellant's competency. Appellant's contentions are based upon Burns' Ind.Stat., 1971 Supp., § 9--1706a, IC 1971, 35--5--3--2, which reads as follows:

'When at any time before the trial of any criminal cause or during the progress thereof and before the final submission of the cause to the court or jury trying the same, the court, either from his own knowledge or upon the suggestion of any person, has reasonable ground for believing the defendant to be insane, he shall immediately fix a time for a hearing to determine the question of the defendant's sanity and shall appoint two (2) competent disinterested physicians who shall examine the defendant upon the question of his sanity and testify concerning the same at the hearing. At the hearing, other evidence may be introduced to prove the defendant's sanity or insanity. If the court shall find that the defendant has comprehension sufficient to understand the nature of the criminal action against him and the proceedings thereon and to make his defense, the trial shall not be delayed or continued on the ground of the alleged insanity of the defendant. If the court shall find that the defendant has not comprehension sufficient to understand the proceedings and make his defense, the trial shall be delayed or continued on the ground of the alleged insanity of the defendant. If the court shall find that the defendant has not comprehension sufficient to understand the proceedings and make his defense, the court shall order the defendant committed to the department of mental health, to be confined by the department in an appropriate psychiatric institution. Whenever the defendant shall become sane the superintendent of the state psychiatric hospital shall certify the fact to the proper court, who shall enter an order on his record directing the sheriff to return the defendant, or the court may enter such order in the first instance whenever he shall be sufficiently advised of the defendant's restoration to sanity. Upon the return to court of any defendant so committed he or she shall then be placed upon trial for the criminal offense the same as if no delay or postponement has (had) occurred by reason of defendant's insanity. (Acts 1951, ch. 238, § 2, p. 682; 1961, ch. 151, § 2, p. 329; 1963, ch. 91, § 1, p. 58; 1967, ch. 291, § 2, p. 946.)'

Appellant cites People v. Heidman (1967), 38 Ill.2d 466, 231 N.E.2d 457 and People v. Chatman (1967), 36 Ill.2d 305, 223 N.E.2d 110 for the proposition that if the court has reason to suspect that an accused is incompetent a hearing must be conducted. In the Heidman case appellant urged that matters occurring at the trial raised a sufficient doubt as to her competency to stand trial. The Illinois court held that what had occurred was not enough to raise such a doubt. In the Chatman case the court stated that where there was a doubt as to the accused's competency it was the duty of the trial court either on its own motion or motion of counsel to determine whether there was sufficient facts to raise a bona fide question of the accused's mental capacity, and in the event of a finding of the existence of such a question the court was required to impanel a jury to resolve such question. We note that in both of the above cited cases there was evidence which might have indicated that the accused was incompetent. However, in ...

To continue reading

Request your trial
39 cases
  • State v. Neider, 15143
    • United States
    • Supreme Court of West Virginia
    • September 20, 1982
    ......2 Our legal test is comparable to that adopted in other jurisdictions. E.g., State v. Branch, 108 Ariz. 351, 498 P.2d 218 (1972); State v. Brown, 173 Conn. 254, 377 A.2d 268 (1977); McCullers v. State, 206 So.2d 30 (Fla.App.1968); Cook v. State, 258 Ind. 667, 284 N.E.2d 81 (1972); State v. Carmichael, 405 A.2d 732 (Me.1979); People v. Simpson, 5 Mich.App. 479, 146 N.W.2d 828 (1966); State v. Bishop, 90 Wash.2d 185, 580 P.2d 259 (1978). 3 Historically, the doctrine of lesser included offenses evolved as an aid to the ......
  • State v. Daggett, 14308
    • United States
    • Supreme Court of West Virginia
    • July 13, 1981
    ......§ 173 (1972). .         "The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense." Cook v. State, 258 Ind. 667, 671-72, 284 N.E.2d 81, 84 (1972). See also, State v. Branch, 108 Ariz. 351, 498 P.2d 218 (1972); McCullers v. State, 206 So.2d 30 (Fla.App.1968). We summarized this test in syllabus point 7 of State v. Bailey, W.Va., 220 S.E.2d 432, (1975) where we said: "An offense is not ......
  • Allen v. State
    • United States
    • Indiana Supreme Court of Indiana
    • September 25, 1997
    ...on the strategic judgment of counsel. In any event, a request for psychiatric examination is not evidence of incompetency. Cook v. State, 258 Ind. 667, 284 N.E.2d 81 There is no record of police awareness of Allen's alleged mental incompetence prior to or during interrogation. Likewise, the......
  • State v. Louk, 14761
    • United States
    • Supreme Court of West Virginia
    • December 18, 1981
    ......        " 'The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense.' Cook v. State, 258 Ind. 667, 671-72, 284 N.E.2d 81, 84 (1972). See also, State v. Branch, 108 Ariz. 351, 498 P.2d 218 (1972); McCullers v. State, 206 So.2d 30 (Fla.App.1968). We summarized this test in syllabus point 7 of State v. Bailey, W.Va., 220 S.E.2d 432 (1975) where we said: 'An offense is ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT