Hamp v. State, 1--473A63
| Court | Court of Appeals of Indiana |
| Citation | 301 N.E.2d 412,157 Ind.App. 567 |
| Docket Number | No. 1--473A63,1--473A63 |
| Parties | James HAMP, Appellant, v. STATE of Indiana, Appellee. |
| Decision Date | 18 September 1973 |
Malcolm G. Montgomery, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
Defendant-appellant was convicted of the crime of jailbreaking pursuant to IC 35--21--8--1, Ind.Stat.Anno. § 10--1809 (Burns 1956 Replacement), as charged in the affidavit. Trial was had to a jury after appellant's plea of not guilty, which was subsequently changed to not guilty by reason of insanity.
The facts, briefly, are that appellant was present in the Vanderburgh County Jail on the night of December 25, 1971, and participated in a jailbreak during which 15 of some 43 prisoners escaped. The evidence disclosed that the deputy in charge of the jail was subjected to force and his life was threatened.
Appellant timely filed his motion to correct errors, which was overruled by the court and this appeal was perfected.
Appellant's first contention, as raised by specifications 1 and 2 of his motion to correct errors, is that the evidence is not sufficient to prove beyond a reasonable doubt all of the necessary elements of the offense charged.
Appellant contends that the first element of the offense requires that the defendant must have been lawfully confined in the jail or prison and that this element was not established by sufficient evidence. 1
Justice DeBruler in Utley v. State (1972), Ind., 281 N.E.2d 888, 891, discussed jailbreaking as follows:
'Under § 10--1809, the appellee had the burden of proving that: (1) appellant had been lawfully confined in a jail or prison, (2) while under such lawful detention, (3) appellant escaped from the custody of the officer lawfully in charge of such person.'
And Judge Robertson of this court, in the case of Gulley v. State (1973), Ind.App., 294 N.E.2d 630, stated as follows:
The parties having stipulated defendant-appellant was lawfully detained in the Vanderburgh County Jail at the date and time in question and the evidence most favorable to the State being that he escaped the jail with 14 other prisoners during a jailbreak, is sufficient to prove his guilt of the offense charged beyond a reasonable doubt.
Specification 3 of the motion to correct errors is that the court erred in permitting the State to introduce into evidence State's Exhibit 1, a Chinese checker board, in that it was irrelevant, immaterial and highly prejudicial to the defendant.
The evidence was that the officer who was then testifying had purchased Chinese checkers and other games for inmates to help them pass the time. The checker board was metal and some prisoner had fashioned a knife from the metal, which knife was used in the jailbreak.
The exhibit offered was the same type of Chinese checker board which was put in defendant-appellant's cell prior to December 25, 1971, as well as the cells of all other inmates at the same time. Counsel for the appellant stated his objection for the reason it was irrelevant and immaterial and highly prejudicial. The objection was overruled, the exhibit admitted and exhibited to the jury and inspected by each of the jurors.
This evidence, standing alone, would not be sufficient to sustain a conviction. This evidence is cumulative on behalf of the State of Indiana in proving a material fact and is therefore, admissible. Any fact which legitimately tends to connect the defendant with a crime is admissible. Elliott v. State (1972), Ind., 279 N.E.2d 207; Thomas v. State (1968), 251 Ind. 76, 238 N.E.2d 20; McPhearson v. State (1969), 253 Ind. 254, 253 N.E.2d 226; and any evidence tending to prove a material fact is admissible, even though its tendency in that direction may be exceedingly slight.
Defendant-appellant next argues specification 7 of his motion to correct errors, which is to the effect that the court erred in giving to the jury State's Instruction No. 5 to which defendant-appellant timely objected in writing. State's Instruction No. 5 is as follows, to-wit:
'The Court instructs you that the question of insanity should be carefully considered by the Jury because a due regard for the ends of justice and the welfare of society demand that a party guilty of a crime be convicted.'
Defendant-appellant's objection is as follows, to-wit:
'The Defendant, James Hamp, would object to State's Instruction No. 5 for the following reasons: No. 1, that it is highly prejudicial and it makes a mockery of the defendant's plea of insanity; No. 2, it does not properly state the law in the State of Indiana; and No. 3 it invades the province of the Jury.'
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