Eby v. State

• Decision Date: 18 December 1972
• Docket Number: No. 572A229,572A229
• Parties: Thomas M. EBY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 89

290 N.E.2d 89

154 Ind.App. 509

Thomas M. EBY, Appellant, v. STATE of Indiana, Appellee.

No. 572A229.

Court of Appeals of Indiana, Second District.

Dec. 18, 1972.

Rehearing Denied Jan. 22, 1973.

David F. McNamar, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for appellee.

WHITE, Judge.

Defendant appeals from a bench trial conviction of first degree burglary on an affidavit charging that he broke into the dwelling of prosecutrix 'with intent to do violence and physical abuse upon' her. The only substantial issue before us is whether the evidence is sufficient to prove beyond a reasonable doubt the specific intent charged. We hold that it is and affirm.

Indiana's statutory first degree burglary differs in its essential elements from the common law crime of burglary not only in omitting the nighttime requirement ¹ but also in adding a specific intent, i.e., 'with the intent . . . therein . . . to do any act of violence or injury to any human being.' ² Solely for the purpose of discussing the law applicable to proof of the specific intent here charged we assume that the only evidence thereof in the case at bar is the breaking and entering and the act of violence defendant committed on prosecutrix after he entered her apartment. (He grabbed her as she was walking from one room to another, pushed a pillow against her face, backed her against the wall, released her when she bit his hand and she then ran from the apartment.) Also assumed, but merely arguendo, is the proposition that his commission of the battery after entry, without more, is not sufficient to prove beyond a reasonable doubt that his purpose for breaking in (i.e., the reason he broke in) was 'to do violence and physical abuse upon' prosecutrix. On the basis of these assumptions we address the abstract legal question of whether the commission of a battery after break-in, without more, is sufficient circumstantial evidence to warrant the inference that the intruder possessed a specific intent to do violence at the time he entered. In short, we question whether 'intent' is 'purpose'.

As Professor Hall has noted, 'The meaning of any term employed in legal discourse is either popular or technical; the latter frequently represents the imposition of a professional superstructure upon an initially common word.' ³ Likewise the meaning of a legal term is most often explained by equating it to a synonym which has only a popular meaning. In Black's Law Dictionary 4th Ed. (1957), p. 947, we find:

"Intent' and 'motive' are not in law one and the same thing. State v. Logan, 344 Mo. 351, 126 S.W.2d 256, 260, 122 A.L.R. 417. 'Intent' in legal sense is purpose to use particular means to effect certain result; whereas, 'motive' is reason which leads minds to desire that result. United Fidelity Life Ins. Co. v. Adair, Tex.Civ.App., 29 S.W.2d 940, 943.'

In 1 Burdick, Law of Crime (1946), § 120, p. 139 we find this discussion under the catch line 'Specific Intent' (notes omitted):

'In addition to the mental element known as 'the intent' which must exist in all crimes, some crimes require a further mental element known as the specific intent. This is intent in the popular sense, a definite and actual purpose to accomplish some particular thing. For example, burglary at common law is breaking and entering in the nighttime the dwelling house of another with intent to commit some felony therein. This intent to commit a felony is a specific intent. To constitute the crime, each one of its elements must be willingly or voluntarily committed, and that is what constitutes 'the intent', which in distinction from a specific intent is often called 'the general intent'. But in addition to this general intent the state of mind which must accompany burglary requires another element and that is a specific intent to commit some felony. The intended felony in burglary is usually larceny, but it may be some other felony such as murder, rape, or arson, but the breaking and entering the dwelling house of another in the nighttime would not be burglary unless the specific intent, or purpose or design, to commit a felony is also present. Likewise, in the crime of larceny there is a specific intent, an intent to deprive permanently the owner of his property, technically known in the law as the 'animus furandi', or intent to steal. Also, in a charge of assault, with intent to kill, there must be present all the elements, including the mental state, required in an assault, and also a specific intent to kill, which would be a particular or specific direction of the mind against the life of the person assailed. In most crimes there is no specific intent, the general intent being all that is required, but, as previously pointed out, every attempt to commit a crime necessarily includes a specific intent to commit that particular crime. The crime of murder contains no element of specific intent and one may be guilty of murder without an intention of taking life, but in an attempt to murder the specific intent to take life must be present.

'The general criminal intent in crimes is presumed from the criminal act, and if the absence of any general intent is relied upon as a defense, such absence must be shown by the accused. A specific intent is not presumed. Its existence is a matter of fact for the jury, and must be proved by the state just as any other essential element. This may be shown, however, by the nature of the act, the circumstances under which it was committed, the means employed, and the motives of the accused.'

Upon the assumptions we have made, if we were to adopt Prof. Burdick's definition of specific intent ('a definite and actual purpose to accomplish some particular thing'), we would be forced to say that the evidence was not sufficient to prove the specific intent charged. But we are satisfied that the meaning of 'intent' (as a legal term in what we call 'specific intent') does not always coincide with the popular concept of 'purpose'. Although one cannot do an act for a purpose (i.e., to achieve a result) without having a specific intent to accomplish that purpose, the existence of such intent does not necessarily preclude the coexistence of other intents which are also specific intents even though they are not the purpose of, or the reason for, the act.

Yoder v. United States (C.A.10, 1935), 80 F.2d 665, was an appeal from a conviction under the so-called White Slave Act. The section of the statute under which defendant was convicted 'condemns the interstate transportation of a woman 'for the purpose of prostitution or debauchery, or any other immoral purpose.' 18 U.S.C.A. § 398.' (Id. at 668.) The defense was that although immoral practices were engaged in during the interstate trip and at its destination, such was not the purpose of the trip. Instead, the purpose asserted was the woman's employment of the defendant to take her to Chicago to transact legitimate business. The trial court, however, instructed the jury 'that even if she employed him to make the trip to inspect a garage, still he would be guilty if when the trip started he intended to have carnal intercourse with her.' (Id. at 669.)

In holding the giving of that instruction (charge) to be reversible error the court of appeals said:

'The court's charge substituted for the 'purpose' condemned by the statute of 'intent' of defendant. An examination of the dictionaries helps but little in ascertaining the meaning of these words, for each has its shades which merge one into the other. In ordinary use, 'purpose' means the motive for an act, the intention which prompted it, and without which it would not have occurred. 'Purpose' is an intent that motivates. Action is had because of one or more purposes; accompanying the purpose are intentions which are purely incidental and which exert no influence on the action. Counsel go from Oklahoma City to Denver to argue a case; when they leave, they have a fixed intention to ride on the train, to eat, and to sleep. Yet no one would say the purpose of the trip was to eat. The substitution of the 'intent' used in the charge for the 'purpose' of the statute ignored the element of motivation in the word 'purpose,' and by so doing, stripped the defendant of his defense.

'If the charge had followed the statute, the jury might well have believed that the purpose of the trip was legitimate employment, and that any idea of sexual relations was as subsidiary and as unrelated to the reasons for the trip as eating and sleeping en route. Not only did six witnesses, five disinterested, testify directly as to the purpose of the trip, but the jury's common sense might have suggested that, on Mrs. Young's own testimony, it was quite unnecessary to go to Chicago or anywhere else for sexual reasons. In the ordinary use of language, it cannot fairly be said that Yoder transported Mrs. Young for an immoral purpose, if the only reason which prompted him to make the trip was to earn mechanic's wages, simply because he intended to continue his relations with her while on the trip.

'The government charged what the statute condemns, an interstate transportation for an immoral purpose. The government offered proof of such purpose. The defendant offered evidence that the trip was made for an entirely different purpose--a business reason. The jury should have been left to decide the issue. Instead the court charged in substance that whatever may have been the reason that brought about the trip, there must be a conviction if Yoder intended to have sexual commerce with her while away. No matter how vagrant and fleeting that intent, no matter that it did not influence in the slightest degree the decision to make the trip, still, the court charged, there must be a conviction if Yoder harbored the intent to continue his relations with her. This is substantial error.' (Id. at 670.)

After citing many cases in which the same result was...