Sipp v. State
| Decision Date | 27 October 1987 |
| Docket Number | No. 45A03-8704-CR-105,45A03-8704-CR-105 |
| Citation | 514 N.E.2d 330 |
| Parties | Benny Ray SIPP, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Robert D. Rucker, W. Henry Walker & Associates, P.C., East Chicago, for appellant.
Linley E. Pearson, Atty. Gen., Donald B. Kite, Sr., Deputy Atty. Gen., Indianapolis, for appellee.
Benny Ray Sipp appeals his conviction for reckless homicide, 1 a class C felony. Following a trial by jury, the trial judge entered judgment on the jury's verdict of guilty. Sipp raises two issues on this appeal:
1. Whether the verdict of the jury was supported by sufficient evidence;
2. Whether the trial court erred in failing to give Sipp's tendered jury instructions.
We need not discuss the sufficiency of the evidence issue because we reverse on the instruction issue.
Reversed.
The undisputed evidence shows that Sipp, traveling in excess of fifty miles per hour, side-swiped two cars stopped at a traffic light before slamming into the decedent's car, also stopped at the traffic light. Sipp, who suffers epileptic seizures, testified before the Grand Jury that he did not remember anything about the accident and believes he was suffering from a seizure causing him to lose consciousness, at the time of the accident.
The instructions tendered by Sipp and refused by the court numbered 1, 2, 3, 4, and 5 read as follows:
DEFENDANT'S INSTRUCTION NO. 1
Proof that the accident which resulted in the death of Bevery [sic] K. White arose out of the inadvertence, lack of attention, forgetfulness or thoughtlessness of the defendant, Benny R. Sipp, as the driver of the other automobile involved in the accident, or from an error of judgment on the part of the said Benny R. Sipp, will not support a charge of reckless homicide, and in that event you must find the defendant not guilty of the charges of reckless homicide.
Members of the jury, I instruct you, that if Benny R. Sipp were merely negligent in operating his automobile, then he is not criminally liable, and your verdict must be not guilty.
I instruct you that if Benny R. Sipp due to error of judgment caused the collision, then he cannot be guilty of reckless homicide, and your verdict must be not guilty.
I instruct you if Benny R. Sipp due to forgetfulness or thoughtlessness, caused the collision, then he cannot be guilty of reckless homocide [sic], and your verdict must be not guilty.
Members of the jury, I instruct you, that one must intend to do, or omit to do the act resulting in injury to another in order to be guilty of reckless homicide. Now if you believe that the defendant, Benny R. Sipp, did not intentionally commit the act and he was only negligent, then your verdict must be not guilty.
The test of whether a tendered instruction is proper is whether there is evidence to support the giving of the instruction, whether the substance of the tendered instruction is covered by other instructions and whether the instruction properly states the law. Bieghler v. State (1985), Ind., 481 N.E.2d 78, 96, reh. denied, cert. denied, (1986), 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349.
Sipp cites Cichos v. State (1962), 243 Ind. 187, 184 N.E.2d 1, as support for his contention the trial court erred in refusing his tendered instructions. In Cichos, the Supreme Court held that reversible error occurred where the trial court refused tendered instructions almost identical to the tendered instructions at issue here. The State concedes that Sipp's instructions are a correct statement of the law, but argues that there is no evidence to support instructions numbered, 1, 3, 4 and 5. We fail to see the logic of this argument. As the court said in Cichos:
Whether the evidence in this case establishes that the deaths alleged in the indictment occurred from a mere accident, from negligent conduct or from willful and/or wanton misconduct so as to amount to recklessness, is dependent on the weight given the various aspects of the case and the evidence by the jury. The very purpose of the jury is to determine, after deliberation and pursuant to the court's instructions, the legal category into which the jury feels the defendant's conduct falls.
As to instruction numbered 2, the State asks us to treat the word "negligent" as a "term of art" requiring an instruction defining "negligent." See Smith v. State (1981), Ind., 422 N.E.2d 1179, 1184 (). We decline to do this. If the trial court had accepted the tendered instruction, whether an additional instruction defining "negligent" was necessary would have been within the trial court's discretion. Sipp did not need to tender a further instruction. Erickson v. State (1982), Ind., 439 N.E.2d 579, 580.
The only question remaining is whether the instructions given by the trial court covered the substance of the refused instructions. The State does not attempt to argue this point. The relevant instructions given by the trial court are as follows:
FINAL INSTRUCTION 5
A person engages in conduct "recklessly" if he engages in the conduct in plain, conscious, and unjustifiable disregard of the harm that might result, and the disregard involves a substantial deviation from acceptable standards of conduct.
* * *
* * *
The...
To continue reading
Request your trial
-
Springer v. State
...at 560. In significant part, the Court of Appeals relied on Cichos v. State, 243 Ind. 187, 184 N.E.2d 1 (1962), and Sipp v. State, 514 N.E.2d 330 (Ind.Ct. App.1987), for this In Cichos, the defendant was convicted of reckless homicide after he was involved in a head-on collision. 243 Ind. a......
-
Edmond v. State
...expounding on the definition of negligence was not an abuse of discretion.2 In support of her argument, Edmond relies on Sipp v. State, 514 N.E.2d 330 (Ind.Ct.App.1987), and Cichos v. State, 243 Ind. 187, 184 N.E.2d 1 (1962). However, in Sipp, the jury was not instructed that the State had ......
-
Shepherd v. State
...State , 135 N.E.3d 619, 623 (Ind. Ct. App. 2019), as New did not involve the same proposed instruction as this case. Sipp v. State , 514 N.E.2d 330 (Ind. Ct. App. 1987), the other case cited by Shepherd, bears closer examination but does not persuade us that the trial court abused its discr......
-
Springer v. State, 31A01-0110-CR-368.
...is weak and inconsistent. Id. However, the evidence must have some probative value to support the defense. Id. In Sipp v. State, 514 N.E.2d 330 (Ind.Ct. App.1987), this court reviewed a trial court's failure to give the jury the defendant's tendered instructions on negligence as his defense......