Davis v. State, No. 676

Docket NºNo. 676
Citation265 Ind. 476, 355 N.E.2d 836
Case DateOctober 14, 1976

Page 836

355 N.E.2d 836
265 Ind. 476
Robert L. DAVIS, Appellant,
v.
STATE of Indiana, Appellee.
No. 676 S 191.
Supreme Court of Indiana.
Oct. 14, 1976.

[265 Ind. 477]

Page 837

Michael E. Hunt, Monroe County Public Defender, Bloomington, for appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

DE BRULER, Justice.

Appellant, Robert L. Davis, was charged by information in the Monroe Superior Court, with the offenses of kidnapping, Ind.Code § 35--1--55--1 (Burns 1975), and rape, Ind.Code § 35--13--4--3 (Burns 1975). Appellant entered a plea of guilty to the rape charge and was convicted of kidnapping after trial by jury. He was sentenced to a term of seventeen years imprisonment for the rape conviction and life imprisonment for kidnapping. Appellant filed a motion to correct errors which was overruled and, he appeals, raising the following two questions:

(1) Whether the trial court erred in refusing to give a tendered instruction on the defense of mistake of fact;

Page 838

(2) Whether the trial court erred in giving two instructions on the effect of intoxication as a defense.

I.

The appellant tendered his final instruction (7a) which stated:

'Ignorance or mistake of fact is a defense when it negatives the existence of a mental state essential to the crime charged. If the jury believes, from the evidence, that the conduct of the prosecutrix was such towards the defendant, at the time of the alleged kidnapping, as to create in the mind of the defendant the honest and reasonable belief that she had consented, or was willing to go with the defendant, then you must acquit the defendant.'

The trial court refused this instruction. The State argues that this Court is precluded from considering the merits of [265 Ind. 478] appellant's contentions because appellant failed to include in the argument section of his brief a verbatim account of his objections to the refusal of his instruction and to the giving of the court's instructions. It is true that appellant has not complied with Ind.R.Ap. P. 8.3(A)(7) in this respect. This rule was adopted by the Court 'to secure a convenient and uniform mode for presentation of issues to an appellate court,' not to allow one party to avoid the substance of the other's arguments. Hubbard v State, (1974) Ind., 313 N.E.2d 346, 348. We invoke Appellate Rule 8.3 to hold an appellant's specification of error waived only when we find his non-compliance with the rule sufficiently substantial to impede our consideration of the issue raised. In this case we find that the issue of the propriety of this instruction is presented in a manner sufficiently clear to allow us to reach the substance of appellant's contention. We hope that this does not encourage any member of the Bar of this State to ignore Rule 8.3 in the future, for this Court has often applied that rule to hold an issue waived where we have found the non-compliance to be substantial or in bad faith. Frasier v. State, (1974) Ind., 312 N.E.2d 77; Martin v. State, (1974) 261 Ind. 492, 306 N.E.2d 93; Bonds v. State, (1972) 258 Ind. 241, 280 N.E.2d 313.

In considering whether any error results from refusal of a tendered instruction we must determine: (1) whether the tendered instruction correctly states the law, Gayer v. State, (1965) 247 Ind. 113, 210 N.E.2d 852; (2) whether there is evidence in the record to support the giving of the instruction, Wathen v. State, (1965) 246 Ind. 245, 204 N.E.2d 526; (3) whether the substance of the tendered instruction is covered by other instructions which are given, Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770; New v. State, (1972) 254 Ind. 307, 259 N.E.2d 696; Cockrum v. State, (1968) 250 Ind. 366, 234 N.E.2d 479.

The tendered instruction relates to the defense of 'mistake of fact.' Indiana has long recognized that an honest and reasonable mistake concerning a fact or facts, excuses criminal[265 Ind. 479] conduct which would not be criminal if facts were as the actor reasonably believed. Noble v. State, (1967) 248 Ind. 101, 223 N.E.2d 755; Squire v. State, (1874) 46 Ind. 459. 1

To sustain a conviction of kidnapping it is necessary that it be shown that the accused intended to do the prohibited thing, to forcibly or fraudulently carry off a person from any place within the state. White v. State, (1963) 244 Ind. 199, 191 N.E.2d 486; Boatman v. State, (1956) 235 Ind. 623, 137 N.E.2d 28; Sweet v. State, (1941) 218 Ind. 182, 31 N.E.2d 993. An honest, reasonable belief that his victim freely consented to accompany him would negate any intent to 'forcibly carry off'

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the victim. It need not negate an intent to 'fraudulently carry off,' because the statute also prohibits the procurement of a person's voluntary accompaniment by fraudulent means. See Shipman v. State, (1962) 243 Ind. 245, 183 N.E.2d 823.

The information in this case charged appellant with 'unlawfully, feloniously, and forcibly carry(ing) away, decoy(ing) and kidnap(ping)' his victim. While...

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125 practice notes
  • Woods v. State, No. 885
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1989
    ...the instruction, and (3) whether the substance of the instruction is covered by other instructions which are given. Davis v. State (1976), 265 Ind. 476, 355 N.E.2d Article I, Sec. 18 provides: The penal code shall be founded on principles of reformation, and not of vindictive justice. This ......
  • Combs v. State, Supreme Court Case No. 20S-CR-616
    • United States
    • Indiana Supreme Court of Indiana
    • June 3, 2021
    ...But his noncompliance with that rule was not "sufficiently substantial to impede our consideration" of his argument, Davis v. State , 265 Ind. 476, 478, 355 N.E.2d 836, 838 (1976), largely because of his pretrial suppression motion. And because we prefer to resolve cases on their merits, we......
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...to make him totally incapable of forming a specific intent. Lyda v. State, (1979) Ind., 395 N.E.2d 776, 781; Davis v. State, (1976) 265 Ind. 476, 478, 355 N.E.2d 836, 838. The trial court did not err in refusing to read this instruction to the Appellant contends the trial court erroneously ......
  • Woods v. Anderson, No. IP99-0520-C-M/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • February 2, 2004
    ...the substance of the instruction is covered by other instructions which are given. Woods I, 547 N.E.2d at 784 (citing Davis v. State, 265 Ind. 476, 355 N.E.2d 836 (1976)). The Seventh Circuit has explained that the federal standard for reviewing the same question is whether the refusal to g......
  • Request a trial to view additional results
125 cases
  • Woods v. State, No. 885
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1989
    ...the instruction, and (3) whether the substance of the instruction is covered by other instructions which are given. Davis v. State (1976), 265 Ind. 476, 355 N.E.2d Article I, Sec. 18 provides: The penal code shall be founded on principles of reformation, and not of vindictive justice. This ......
  • Combs v. State, Supreme Court Case No. 20S-CR-616
    • United States
    • Indiana Supreme Court of Indiana
    • June 3, 2021
    ...But his noncompliance with that rule was not "sufficiently substantial to impede our consideration" of his argument, Davis v. State , 265 Ind. 476, 478, 355 N.E.2d 836, 838 (1976), largely because of his pretrial suppression motion. And because we prefer to resolve cases on their merits, we......
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...to make him totally incapable of forming a specific intent. Lyda v. State, (1979) Ind., 395 N.E.2d 776, 781; Davis v. State, (1976) 265 Ind. 476, 478, 355 N.E.2d 836, 838. The trial court did not err in refusing to read this instruction to the Appellant contends the trial court erroneously ......
  • Woods v. Anderson, No. IP99-0520-C-M/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • February 2, 2004
    ...the substance of the instruction is covered by other instructions which are given. Woods I, 547 N.E.2d at 784 (citing Davis v. State, 265 Ind. 476, 355 N.E.2d 836 (1976)). The Seventh Circuit has explained that the federal standard for reviewing the same question is whether the refusal to g......
  • Request a trial to view additional results

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