Limp v. State, No. 28602

Docket NºNo. 28602
Citation92 N.E.2d 549, 228 Ind. 361
Case DateMay 26, 1950
CourtSupreme Court of Indiana

Page 549

92 N.E.2d 549
228 Ind. 361
LIMP

v.
STATE.
No. 28602.
Supreme Court of Indiana.
May 26, 1950.

[228 Ind. 362] William V. Slyker, Evansville, Wilbur F. Dassel, Evansville, for appellant.

J. Emmett McManamon, Atty. Gen., Charles F. O'Connor, Deputy Atty. Gen., Merl M. Wall, Depty. Atty. Gen., for appellee.

STARR, Judge.

The appellant herein was charged by affidavit in the Vanderburgh Circuit Court with the crime of first degree burglary and being an habitual criminal as defined by § 9-2207, Burns' 1942 Repl. To this affidavit the appellant entered his plea of not guilty and a special plea of unsound mind. The trial was by jury which resulted in a verdict of guilty upon which judgment was rendered. It is from this judgment that this appeal was taken.

The appellant by his assignment of errors has called in question the sufficiency of the evidence to sustain the verdict. The substance of the argument is that all the evidence offered as to appellant's sanity tended to prove appellant's unsoundness of mind and therefore the jury was bound to acquit the appellant.

[228 Ind. 363] All the evidence offered in this case directly on the issue of appellant's sanity was substantially as follows: The appellant testified that just prior to the commission of the alleged crime he had been drinking a considerable amount of alcoholic liquor consisting of beer and whiskey; that he did not remember leaving the last tavern which he was in on that day; that he could not remember committing the acts complained of, and that his memory did not return until after he had been arrested for the alleged offense; that the first time he remembered what had happened was the following morning when told by the policemen. One Nettie Ziegler testified on behalf of the appellant that she saw him shortly before the commission of the alleged offense and that in her opinion he was under the influence of intoxicating liquor at that time.

The appellant's witness, one Dr. H. M. Kauffman, testified that he was engaged in the special work of psychiatry and that a few weeks after the commission of the offense he examined the appellant professionally and found no evidence of psychosis at that time and no type of insanity present. The doctor further testified it was his opinion that at the time of the alleged crime the appellant was suffering from a temporary type of mental disturbance known as pathological intoxication; that pathological intoxication is a mental disturbance certain individuals experience and is recognized as a type of insanity by practically all authorities on psychiatry. It may develop from a small or large quantity

Page 550

of intoxicants and differs from ordinary intoxication caused by liquor in that the sufferer has no memory at all after he becomes sober of what he has done, while a normal man after being intoxicated does recall some of the things that happen; that in some persons a comparatively small amount of alcohol may [228 Ind. 364] cause this condition and they may become completely deranged, while this amount of alcohol would cause very little change in the conduct of an ordinary person. That this disorder lasts from a few minutes to a day or more and is usually followed by prologed sleep, after awakening from which there is an amnesia from the episode. The witness further testified that due to the appellant's condition at the time the alleged acts were committed the appellant was incapable of forming a wilful intent. The witness further stated that he based his opinion not only on the statements he obtained from the appellant but also upon the facts that the appellant had complete amnesia, and that his behavior was strange because he entered the house as charged and only picked up trifling objects. That one suffering from this type of insanity can be perfectly normal, as is the appellant, while sober and yet if he takes two or three drinks of liquor it causes him to be insane, and that he may not have sufficient will power to leave liquor alone.

Dr. Harold Nisenbaum, who has had considerable experience in psychiatry, testified as a court witness. He testified that the appellant had a psychopathic personality, which is not a true insanity. That a man possessing such a personality will commit an act emotionally because of emotional drive without any consideration of the consequences of that act. That when the appellant is sober he does not commit crime, but the fact that he is a psychopathic person causes him to drink even though he realizes that when drunk he suffers amnesia which keeps him from realizing what he is doing; that appellant has not sufficient will power when sober to prevent him from choosing to drink or get drunk and commit crimes. This witness based his opinion solely upon the history given him by the appellant. The witness further stated that a large [228 Ind. 365] percentage of the criminals with whom he has come in contact have had psychopathic personalities; that the appellant when sober is sane and of average intelligence and fully able to reason and to judge normally.

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9 practice notes
  • Young v. State, No. 1071S301
    • United States
    • Indiana Supreme Court of Indiana
    • March 30, 1972
    ...positive evidence of sanity in its opening case. Berry v. State, supra quotes from and is supported by the law in Limp v. State (1950), 228 Ind. 361, 365, 92 N.E.2d 549, Page 602 550, and in theory by Freese v. State (1903), 159 Ind. 597, 604, 65 N.E.2d 915, 915. In the latter case our cour......
  • Collinson's Estate, In re, No. 17912
    • United States
    • Indiana Court of Appeals of Indiana
    • June 28, 1950
    ...Wright v. Peabody Coal Co., 1948, 225 Ind. 679, 77 N.E.2d 116.' Other cases to the same general effect are: Limp v. State, 1950, Ind.Sup, 92 N.E.2d 549; Cole v. Sheehan Construction Company, 1944, 222 Ind. 274, 53 N.E.2d 172; Talge Mahogany Company v. Burrows, 1921, 191 Ind. 167, 130 N.E. 8......
  • Sypniewski v. State, No. 976S315
    • United States
    • Indiana Supreme Court of Indiana
    • November 15, 1977
    ...v. State, (1969) 251 Ind. 494, 242 N.E.2d 355, cert. denied, 394 U.S. 1007, 87 S.Ct. 1608, 22 L.Ed.2d 786 (1969); Limp v. State, (1950) 228 Ind. 361, 92 N.E.2d 549. However, in reviewing instructions for harmful error, Page 1362 we are bound to consider the impact of the instructions as a w......
  • Kilgore v. State, No. 3--475A68
    • United States
    • Indiana Court of Appeals of Indiana
    • September 9, 1976
    ...It is claimed that the jury was thus advised that it could not discredit any testimony unless it was contradicted. Limp v. State (1950), 228 Ind. 361, 92 N.E.2d 549 is cited for the proposition that a jury is not bound to accept the testimony of a witness simply because it is not directly c......
  • Request a trial to view additional results
9 cases
  • Young v. State, No. 1071S301
    • United States
    • Indiana Supreme Court of Indiana
    • March 30, 1972
    ...positive evidence of sanity in its opening case. Berry v. State, supra quotes from and is supported by the law in Limp v. State (1950), 228 Ind. 361, 365, 92 N.E.2d 549, Page 602 550, and in theory by Freese v. State (1903), 159 Ind. 597, 604, 65 N.E.2d 915, 915. In the latter case our cour......
  • Collinson's Estate, In re, No. 17912
    • United States
    • Indiana Court of Appeals of Indiana
    • June 28, 1950
    ...Wright v. Peabody Coal Co., 1948, 225 Ind. 679, 77 N.E.2d 116.' Other cases to the same general effect are: Limp v. State, 1950, Ind.Sup, 92 N.E.2d 549; Cole v. Sheehan Construction Company, 1944, 222 Ind. 274, 53 N.E.2d 172; Talge Mahogany Company v. Burrows, 1921, 191 Ind. 167, 130 N.E. 8......
  • Sypniewski v. State, No. 976S315
    • United States
    • Indiana Supreme Court of Indiana
    • November 15, 1977
    ...v. State, (1969) 251 Ind. 494, 242 N.E.2d 355, cert. denied, 394 U.S. 1007, 87 S.Ct. 1608, 22 L.Ed.2d 786 (1969); Limp v. State, (1950) 228 Ind. 361, 92 N.E.2d 549. However, in reviewing instructions for harmful error, Page 1362 we are bound to consider the impact of the instructions as a w......
  • Kilgore v. State, No. 3--475A68
    • United States
    • Indiana Court of Appeals of Indiana
    • September 9, 1976
    ...It is claimed that the jury was thus advised that it could not discredit any testimony unless it was contradicted. Limp v. State (1950), 228 Ind. 361, 92 N.E.2d 549 is cited for the proposition that a jury is not bound to accept the testimony of a witness simply because it is not directly c......
  • Request a trial to view additional results

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