Martin v. State
Decision Date | 05 June 1973 |
Docket Number | No. 772S98,772S98 |
Citation | 260 Ind. 490,296 N.E.2d 793 |
Parties | Lloyd Laymon MARTIN, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Ferdinand Samper, Ferd Samper, Jr., Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., of Ind., Darrel K. Diamond, Deputy Atty. Gen., for appellee.
Appellant was charged by indictment with the offense of second degree murder. Trial by jury resulted in a verdict of guilty as charged. Appellant was sentenced to the term of fifteen to twenty-five years.
The record discloses the following facts:
On November 12, 1971, the appellant and the decedent, Dunbar, together with one John Byrne and one Carol Doolittle, drove to Bloomington, Indiana, where they visited several taverns and bought some beer to take with them on their return trip to Indianapolis. Upon arriving in Indianapolis, they first left Miss Doolittle at her home, then drove to the appellant's apartment. During the trip, the appellant and Dunbar had engaged in an argument. When they arrived at appellant's apartment, the appellant and Byrne got out of the automobile and walked a distance, where they stopped and had a conversation. During their conversation, Dunbar started throwing beer bottles in their direction from the car and continued to argue in a loud manner. The appellant told Byrne that Dunbar was making him angry, and that he was 'going to kick Dunbar's ass.' Appellant then approached Dunbar, who picked up another beer bottle and broke it on the fender of the car. Appellant took a knife from his pocket. In the ensuing fight between the men, Dunbar received a cut across the back and a stab wound in the chest, which penetrated his heart. After being stabbed, Dunbar retreated from the fight and collapsed. The appellant and Byrne carried Dunbar into appellant's house, then took him to the hospital, where he was declared dead.
On the way to the hospital, Byrne and the appellant decided they would tell police officers that four negroes had jumped them when they arrived in the parking lot at the apartment, and that Dunbar was stabbed in that encounter. Each man told such a story to the police officers. However, the following day they told police officers the truth. In the meantime, the appellant had given his knife to his father, who had taken it to Linton. The police officers recovered the knife from appellant's father.
At the beginning of appellant's trial, it was stipulated that the appellant did kill David Dunbar, and that Dunbar died from a mortal wound inflicted by a knife held in the hands of the appellant.
Appellant first claims the trial court erred in denying his motion for discharge in that he claims he had not been brought to trial within fifty judicial days from the date of making a motion for early trial pursuant to Ind. Rules of Proc., Rule Cr. 4(B). However, the record discloses that following the making of his motion for early trial, the appellant was arraigned, and although his retained attorney was not present at the arraignment, the trial court appointed two attorneys to represent the appellant at that proceeding. The record further discloses that the court specifically questioned the appellant as to whether or not he wanted an early trial. Appointed counsel asked the appellant if he wanted an early trial or if he wanted to wait to talk to Mr. Samper. The appellant stated that he wished to wait for Mr. Samper. Whereupon, the court advised the appellant that he would set the matter for trial 'in due course,' and that if appellant wished an earlier date he should advise the court, and he would be accommodated. These actions by the appellant at his arraignment can only be interpreted as a voluntary waiver of his right to an earlier trial setting. Cody v. State (1972), Ind., 290 N.E.2d 38, 34 Ind.Dec. 261; Randolph v. State (1954), 234 Ind. 57, 122 N.E.2d 860. Appellant stood before the court within the period of fifty judicial days of the filing of his motion for a speedy trial. At that time the court was faced with the dilemma of the absence of appellant's retained counsel and the need for setting the case for trial. Under those circumstances, the court could do no more than inquire of the appellant himself as to what he desired in the way of a trial setting. The fifty day rule was adopted to insure that an accused would not be held for an unreasonable period, unless, of course, he himself chose to extend that period. In the case at bar, the purpose of the rule was well served when appellant was, in fact, brought before the court and permitted to exercise his free choice of a trial setting. We see no error in the manner in which the trial court handled this situation.
Appellant next claims the trial court erred in refusing to give his Tendered Instruction No. 5, which reads as follows:
and his Tendered Instruction No. 6, which reads as follows:
'The right to take life in self-defense is not dependent on the fact that a man of ordinary prudence would under the circumstances apprehend immediate and urgent danger, but on the fact that the accused himself was really and reasonably so impressed by the appearance if such be the fact.'
The record does disclose that the court gave its own Instruction No. 22, which reads as follows:
'A person in the exercise of the right of self-defense must act honestly and conscientiously.
'One who is in no apparent danger, and who apprehends no danger and who has no reasonable ground for such apprehension cannot kill another and successfully interpose the defense of self-defense.'
The instruction which the court did give obviously covers appellant's requested instructions. It is not error to refuse to give an instruction, the substance of which is adequately covered by instructions given. Sargeant v. State (1970), 255 Ind. 252, 263 N.E.2d 525, 23 Ind.Dec. 444.
Appellant next claims the trial court erred in refusing to give his Tendered Instruction No. 9, which reads as follows:
In the first place, appellant's Tendered Instruction No. 9 does not address itself to the crime for which appellant stood charged, but only the included offense of voluntary manslaughter. It is not error to refuse to give an instruction which would tend to confuse the jury as to the offense charged. See Madison v. State (1971),...
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...no error by refusing to permit the jury to take written instructions with them to the jury room. Two recent samples are: Martin v. State, (1973) Ind., 296 N.E.2d 793; Woods v. State, (1973) Ind.App., 304 N.E.2d ISSUE EIGHT Was it reversible error for the trial court in the subsequent trial ......
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