Eastin v. State, 28998
| Decision Date | 03 February 1954 |
| Docket Number | No. 28998,28998 |
| Citation | 233 Ind. 101,117 N.E.2d 124 |
| Parties | EASTIN v. STATE. |
| Court | Indiana Supreme Court |
Russell S. Armstrong, Theo. Lockyear, Jr., Evansville, for appellant.
Edwin K. Steers, Atty. Gen., Carl Humble, Deputy Atty. Gen., for appellee.
Appellant was charged by affidavit with assault and battery with intent to commit a felony under § 10-401, Burns' 1942 Replacement. The intended felony charged was the first degree murder of her husband. The issue here is the correctness of the court's rulings in refusing two instructions on the effect of the intoxication of the appellant.
It is unnecessary to set forth the entire evidence on the affray. Her husband testified in behalf of the State, and stated that on Easter Sunday morning, April 13, 1952, the appellant 'drank about four pints of Sterling [beer] and four half pints of whiskey' before 9:30 o'clock. 'She came in and said 'Whoopee, I am going to ride that car until it squeals.'' By force he took her out of his panel truck which was standing in front of their home. This was the first struggle of several phases of the controversy. She shot him in the shoulder with a .32 revolver when they were both in the home. Other witnesses corroborated the husband's testimony that she had been drinking.
Appellant in her brief sets forth all the instructions requested by her, and all the instructions given by the court. The court gave no instructions on the matter of intoxication, and refused appellant's requested instructions number 19 and 20. These instructions are set out in the footnote. 1
In Booher v. State, 1901, 156 Ind. 435, 448, 60 N.E. 156, 161, 54 L.R.A. 391, the appellant was tried upon an information, two counts of which charged assault and battery with intent to commit murder in the first degree. The court held that 'The specific intent of the appellant in the case at bar to commit the murder as charged under either count of the information was, under the statutes upon which these counts were respectively based, an essential element or ingredient of the offense, and the existence or nonexistence of such felonious intent was one of the principal questions to be decided by the jury.' 2 The court on its own motion gave an instruction which substantially charged the jury that voluntary intoxication did not excuse the crime. This court reversed the case for the giving of this instruction, and after an exhaustive consideration of all the authorities, held that although voluntary intoxication of an accused after a criminal design or intent was formed or entertained does not excuse crime, yet 'the rule seems to be universally asserted by the authorities that in all prosecutions for an assault with intent to kill the intoxication of the defendant is admissible in evidence, and should be considered by the jury or court trying the case is determining whether he actually entertained the specific intent essential to the crime charged.' 156 Ind. at pages 446, 447, 60 N.E. at page 160.
It is reversible error for a trial court to refuse to give a correct instruction requested by an accused unless a requested instruction is substantially covered by another instruction. Carpenter v. State, 1873, 43 Ind. 371; Parker v. State, 1894, 136 Ind. 284, 35 N.E. 1105; Aszman v. State, 1890, 123 Ind. 347, 359, 24 N.E. 123, 8 L.R.A. 33; Mitchell v. State, 1923, 193 Ind. 1, 138 N.E. 507.
The State insists that instruction number 19 was correctly refused because of the use of the word 'upon' in the first sentence instead of the word 'beyond,' and the use of the word 'defense' instead of 'offense.' The evidence as to appellant's intoxication was detailed by the witnesses for the State. The evidence as to intoxication was relevant on the issue of appellant's capability to form and entertain the specific intent to commit murder. Section 9-1805, Burns' 1942 Replacement, states that 'In charging the jury the court must state to them all matters of law which are necessary for their information in giving their verdict.' No instructions were given on the issue of intoxication, but other instructions defined reasonable doubt and required the State to prove the defendant guilty beyond a reasonable doubt...
To continue reading
Request your trial
-
Brown v. State
...the practice of this court to disregard clerical mistakes or verbal inaccuracies which do not confuse the jury." Eastin v. State, (1954) 233 Ind. 101, 105, 117 N.E.2d 124, 126; accord, England v. State, (1968) 249 Ind. 446, 233 N.E. In Turner v. State, (1972) 258 Ind. 267, 271, 280 N.E.2d 6......
-
Bimbow v. State
...supplied) 236 Ind. at 636--637, 142 N.E.2d at 609. See also, Cotton v. State (1965), 247 Ind. 56, 211 N.E.2d 158; Eastin v. State (1954), 233 Ind. 101, 117 N.E.2d 124. The only evidence of Bimbow's intoxication was his testimony in which he stated that he had 'a couple of drinks' before goi......
-
Shipman v. State
...the appellant, the refusal of the trial court to give the above quoted instruction was held to be error in the case of Eastin v. State (1954), 233 Ind. 101, 117 N.E.2d 124, although the court criticized the form of instruction. However, the Eastin case is distinguishable from the case at ba......
-
Lunce v. State, 29135
...and culminated in Indiana, and if ever a case was proper to instruct on the effect of intoxication, this was it. See Eastin v. State, Ind. 1954, 117 N.E.2d 124. Nor was he familiar with the Indiana law on included offenses in robbery. The court did instruct that larceny was an included offe......