Debruler v. State

• Decision Date: 15 October 1965
• Docket Number: No. 30734,30734
• Citation: 247 Ind. 1,210 N.E.2d 666
• Parties: Henry DeBRULER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 666

210 N.E.2d 666

247 Ind. 1

Henry DeBRULER, Appellant, v. STATE of Indiana, Appellee.

No. 30734.

Supreme Court of Indiana.

Oct. 15, 1965.

William C. Erbecker, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., David S. Wedding, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

The appellant was convicted in the Marion County Criminal Court, Division 2 of rape of one Terri Lee Scott, a female child of the age of fifteen years.

The first question raised on appeal is the claim that there is a fatal variance between the name of the prosecutrix, as alleged in the indictment, to-wit: 'Terri Lee Scott', and the name shown by her birth certificate, to-wit: 'Beverly Rae Hutchison'. The evidence, however, is quite clear on this point. She testified on cross-examination and on re-direct examination, that she went 'under the name of Terri Lee Scott', that she signed her name that way, that people called her Terri Lee Scott, that the defendant knew her by that name and that she was commonly known by the name of Terri Lee Scott. We do not find any variance in the affidavit and in the testimony. It is only when there is a variance which has misled the defendant that it becomes material.

Wharton, Criminal Evidence Sec. 95 (10th ed.) is quoted with approval in Action v. State (1930), 201 Ind. 686, 688, 171 N.E. 197, 198, when it states:

"An indictment will not be held bad which gives a popular name as distinguished from a proper name; it will be enough to sustain the averment of a particular name, that the party was usually or popularly known by such name. * * * The modern rule is that a variance in names is not now regarded as material, unless it appears to the court that the jury was misled by it, or some substantial injury is done to the accused such as that, by reason thereof, he was unable intelligently to make his defense, or he was exposed to the danger of a second trial on the same charge."

In the case of Roberts et al. v. State (1964), Ind., 197 N.E.2d 304, the appellants were charged with taking money belonging to 'Walt's South Side Market Inc.'. The place of business which was robbed was identified variously by witnesses as 'Walt's South Side Market', 'Walt's Southside Super Market', and 'Walt's Supermaket'. We held that this was not a material variance and that a place or person may have more than one name by which he is commonly known. We further stated that the test in determining whether a variance is material is whether or not the defendant was misled by the variation in the evidence. No claim is made here that the defendant was misled by the name by which he knew the prosecutrix.

The appellant further contends that the court on its own motion should have ordered a psychiatric examination of the prosecuting witness. This Court has settled that question previously in Lamer v. State (1964), Ind., 195 N.E.2d 98. We held that it was not the mandatory duty of a court to grant such a motion, if made. We need not repeat the reasoning of the court, as set forth in the above case. For the reasons stated, we find no error.

The appellant next contends that he was prejudiced by reason of his trial attorney's filing a plea of insanity on his behlaf. There is some justification for the appellant's attorney doing this, since the appellant had previously spent eighteen months at the Indiana Hospital for the Insane Criminal at Michigan City. The evidence shows further that the attorney was justified in his actions, since the appellant desired to avoid trial as long as he could, and as a result of the insanity plea the appellant got a continuance. The appellant's attorney further testified that the appellant did not plainly and unequivocally direct that no such plea be made. It seems that the appellant desires to get the benefit of the plea, but when it avails him nothing, then he wishes to predicate error upon such a defense. One may speculate that if the plea had not been filed, then the appellant would now claim error because his attorney had failed to properly raise such a defense.

The appellant further urges that his court-appointed...