Jay v. State
| Decision Date | 01 June 1965 |
| Docket Number | No. 30593,30593 |
| Parties | Robert Lee JAY, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John D. Clouse, Evansville, for appellant.
John Dillon, Atty. Gen., Dave Wedding, Deputy Atty. Gen., for appellee.
Appellant has filed petition for rehearing contending we erred in our previous opinion in holding appellant's tendered instruction No. 14 1 related to first degree burglary and that since appellant was not convicted of such crime, no prejudicial error was committed by failure to give the instruction.
Our earlier opinion considered appellant's tendered instructions Nos. 13 and 14 together as appellant had treated them in his brief. Instruction 13 specifically confined its application to first degree burglary, and as appellant stated both specifications of the motion for new trial dealing with the instructions were substantially the same and grouped and argued them together, we concluded they should be considered together and if so, instruction No. 14 as well as 13 would pertain solely to first degree burglary.
However, even if appellant's instruction No. 14 is considered separate and apart from No. 13, we do not believe it is sufficiently complete and intelligible by itself so that the court's failure to give it was reversible error. Among other things we are unable to digest the instruction's language '* * * to intend the intent * * *'. We are not unmindful that the court in Eastin v. State (1954), 233 Ind. 101, 105, 117 N.E.2d 124, 126, had before it a similar instruction and stated that while it did not recommend the form of the instruction, concluded it was error to exclude two instructions on intoxication.
We do not believe that is comparable to the situation before us here where instruction No. 14 standing by itself simply was not sufficiently clear and understandable for us to conclude that the court's failure to give it was reversible error.
The other matters contended on petition for rehearing are similarly without merit.
Petition for rehearing denied.
1 'The defendants are not to be held responsible for the specific intent if they were too drunk for a conscious exercise of the will to the particular end, or, in other words, took drunk to intend the intent and did not entertain it in fact.'
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