Defries v. State, No. 3-574A73

• Docket Nº: No. 3-574A73
• Citation: 162 Ind.App. 531, 319 N.E.2d 837
• Case Date: December 19, 1974
• Court: Court of Appeals of Indiana

Page 837

319 N.E.2d 837 162 Ind.App. 531 Harold E. DEFRIES, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 3-574A73. Court of Appeals of Indiana, Third District. Dec. 19, 1974. Opinion Superseded 342 N.E.2d 622.

[162 Ind.App. 532]

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Ralph Bower, Stephen Bower, Kentland, for defendant-appellant.

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Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., for plaintiff-appellee.

HOFFMAN, Chief Judge.

This appeal arises from a judgment of conviction entered against appellant Harold E. Defries (Defries) upon a charge of aggravated assault and battery. Following trial by a jury, Defries was sentenced to a terms of imprisonment for not less than one nor more than five years. Upon the overruling of appellant's motion to correct errors, he perfected this appeal.

The facts and inferences most favorable to the State in the record establish that at approximately 10:30 P.M. on the night of June 9, 1973, appellant Defries was driving south on Weston Street in a residential area in Rensselaer, Indiana, at a high rate of speed and in an intoxicated condition. At this time, a group of children were playing in or [162 Ind.App. 533] near the west lane of Weston Street south of its intersection with Oak Street; due to a street light at the intersection, the children were visible from a distance of one block. As Defries approached the intersection from the north, he was seen by Jim Osborn (Osborn), who was approaching the intersection on Oak Street. Defries then failed to stop at the intersection, thereby obliging Osborn to stop to avoid him.

One of the group of children, Jerry Justice (Jerry) had decided a few moments before Defries' arrival at the intersection to leave the group of children, and had crossed to the east side of Weston. Jerry's 9-year old sister, Rhonda, then apparently decided to follow him across the street. When she crossed the street, Rhonda placed herself in the path of Defries' auto as it sped through the intersection straddling the center line. Defries skidded approximately sixty-eight feet before striking Rhonda and throwing her an additional sixty-seven feet from the point of impact. In all, Defries' vehicle skidded ninety-six feet before stopping. His speed as he traveled through the intersection was estimated at from 50 to 60 miles per hour.

After striking Rhonda, Defries stopped momentarily, turned his headlights off, and then proceeded south to the point where she had come to rest upon the pavement. Defries then hastily left the area and returned to his home, whereupon he picked up a neighbor and returned to the scene of the injury. Once back at the scene, Defries advised Police Officer Robert R. Duncan, 'I'm the one, I hit her', and was placed under arrest.

On appeal, Defries first challenges the adequacy of the affidavit under which he was charged. This question was presented to the trial court in a motion to quash, ¹ and has been properly preserved for appeal.

[162 Ind.App. 534] The standards of specificity of indictments and charging affidavits in effect at the time the appellant herein was charged, and the reasons therefor, are well stated in Blackburn v. State (1973), Ind., 291 N.E.2d 686 at 690:

'In this state, the offense charged in the indictment must be stated with such certainty that the accused, the court, and the jury may determine the crime for which conviction is sought. IC 1971, 35-1-23-25 (Burns' Ind.Stat.Ann. § 9-1126 (1956 Repl.)); Thomas v. State (1968), 251 Ind. 76, 238 N.E.2d 20; rehearing denied; See also Noel v. State (1966), 247 Ind. 426, 215 N.E.2d 539 rehearing denied. The defendant must be given sufficient information to enable him to prepare his defense and to assure that he will not twice be put in jeopardy for the same crime. Ind.Const. art. I, § 13; See State v. Brown (1935), 208 Ind. 562, 196 N.E. 696. However, certain details

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may be omitted and a motion to quash may properly be denied unless the indictment is so uncertain and indefinite that the nature of the charge cannot be ascertained. IC 1971, 35-1-23-26 (Burns' Ind.Stat.Ann. § 9-1127 (1956 Repl.)) Kennedy v. State (1935), 209 Ind. 287, 196 N.E. 316 rehearing denied.'

The affidavit in question charges Defries with the crime of aggravated assault and battery substantially in the language of the statute, IC 1971, 35-13-3-1, Ind.Ann.Stat. § 10-410 (Burns Supp.1974), while also alleging the identity of the victim and the date of the offense. It is appellant's contention that the gravamen of the offense is that Defries operated a motor vehicle in such a wanton and reckless manner that his aggravated injury of another in so doing may be deemed willful. Appellant further asserts that because the crime involves the reckless operation of a motor vehicle, the affidavit must contain:

'(s)pecific allegations of what facts exist which make it appear that the injury (or death) was due to the reckless disregard of the safety of others.' Appellant's brief, p. 19.

However, the authorities cited by appellant in support of this contention are inapposite in that they pertain to the [162 Ind.App. 535] crimes of reckless homicide and involuntary manslaughter. It is true that the unlawful act or act of reckless driving which proximately caused a death must be alleged in an affidavit charging involuntary manslaughter or reckless homicide because the existence of a proximate relationship between such acts and a death is the gist of these crimes as delineated by their respective statutes. In contrast, the gist of the offense of aggravated assault and battery as delineated by IC 1971, 35-13-3-1, supra, is the willful, unlawful infliction of great bodily harm and disfigurement upon another. The affidavit here at issue stated these elements of the offense plainly and with certainty.

Appellant's contention on this point must be be considered to be that because the State intended to prove his criminal intent by inference from certain of his reckless acts, he is entitled to be advised of such acts through the affidavit by which he is charged. Such contention is erroneous. The existence of criminal intent as a state of mind in an actor is an ultimate fact which may be inferred by the trier of fact from the circumstances surrounding an act as revealed by the evidence. See: Farno v. State (1974), Ind.App., 308 N.E.2d 724, and cases cited therein. However, the evidentiary facts from which such ultimate facts must be proved need not be alleged in an indictment or affidavit. State v. Schell (1967), 248 Ind. 183, 224 N.E.2d 49. Therefore, the omission from the charging affidavit herein of the specific acts from which the appellant's intent was...