Smith v. State, No. 483S141

Docket NºNo. 483S141
Citation465 N.E.2d 702
Case DateJuly 12, 1984
CourtSupreme Court of Indiana

Page 702

465 N.E.2d 702
Mark SMITH, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 483S141.
Supreme Court of Indiana.
July 12, 1984.

Page 703

James R. Cotner, Cotner, Mann & Chapman, Bloomington, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Mark Smith, was convicted by a jury of attempted murder, a Class A felony, Ind.Code Secs. 35-41-5-1, 35-42-1-1(1) (Burns 1979 Repl.). He was sentenced to the Indiana Department of Correction for a term of thirty years. He raises the following three issues in this direct appeal:

1. Whether it was reversible error to overrule the defendant's motion to dismiss

Page 704

based upon the allegedly inadequate charging information;

2. Whether it was reversible error to admit into evidence a tape recording of the victim's statement to police; and

3. Whether defendant was denied the effective assistance of counsel.

A brief summary of the facts from the record most favorable to the state shows that on June 14, 1982, Diana [Smith] Jackson was separated from her husband, the defendant, and was living with her parents in Bloomfield, Indiana. Diana was nineteen years old and had custody of the couple's nine-month old son. She was a student at Ivy Tech in Bloomington, Indiana. On June 14, defendant called Diana at her parents' home and explained he would be late making his support payment that week. He also asked whether their joint checking account had been closed and whether they had to have a final hearing on the dissolution proceedings. Diana hung up on him. Defendant then went to the parking lot of Diana's school and waited for her. When he saw her drive in, he approached the car and opened the door on the driver's side. He asked her about the clothes she was wearing and why she wasn't wearing her wedding ring.

Defendant then choked Diana until she lost consciousness. When she regained consciousness, defendant apologized and asked her to go someplace where they could talk. Diana refused and defendant choked her again. Diana said, "Mark, you're going to kill me," and defendant responded, "That's right, I'm going to kill you." Diana pretended to lose consciousness again, and when defendant stopped choking her, she got out of the car and ran. Defendant ran after her and stabbed her several times in the back with a kitchen knife. Diana tripped and fell and defendant stabbed her several more times in the side and chest. Some bystanders pulled defendant away from Diana and defendant said they might as well kill him, too. Police arrested defendant at the scene. Diana suffered six stab wounds and a collapsed lung and required emergency surgery to stop internal bleeding. She gave a statement to police at the hospital.

I.

Defendant first contends that the trial court erred in denying his motion to dismiss because the charging information did not adequately set out the necessary elements of the crime of murder. He argues that the information did not state that the acts of defendant were done with the intent to kill the victim and therefore omitted an essential element of the crime of murder. The information stated in relevant part:

"that Mark E. Smith on or about the 14th day of June, 1982, at and in said County and State aforesaid did attempt to commit the crime of murder by knowingly striking, cutting and stabbing at and against the body of Diana Smith with a knife, then and there held in the hands of the said Mark E. Smith, which conduct constituted a substantial step toward the commission of said crime of murder."

It is well settled that an information must state the crime in words of the statute or words that convey a similar meaning. However, the exact words of the statute need not be employed. Smith v. State, (1983) Ind., 445 N.E.2d 998; Askew v. State, (1982) Ind., 439 N.E.2d 1350; Brown v. State, (1980) Ind.App., 403 N.E.2d 901. The accused must be sufficiently apprised of the nature of the charges against him so that he may anticipate the proof and prepare a defense in advance of trial. Ind. Const. art. 1, Sec. 13; Ind.Code Sec. 35-34-1-2 (Burns 1984 Supp.); Head v. State, (1982) Ind., 443 N.E.2d 44. Minor variances from the wording of a statute do not make an information defective so long as the words, construed according to their common usage, do not mislead the accused or do not omit an essential element of the crime. Johnson v. State, (1983) Ind., 455 N.E.2d 932; Williams v. State, (1979) 271 Ind. 656, 395 N.E.2d 239; Brown v. State, 403 N.E.2d at 908.

Here the language in the information stated that defendant was charged

Page 705

with attempting to commit "the crime of murder." While it would be preferable for an information for attempted murder to contain the phrase "knowingly or...

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32 practice notes
  • Kindred v. State, No. 285S67
    • United States
    • Indiana Supreme Court of Indiana
    • June 8, 1988
    ...of the charges against him so that he may anticipate the proof and prepare a defense in advance of trial. Smith v. State (1984), Ind., 465 N.E.2d 702; Griffin v. State (1982), Ind., 439 N.E.2d 160, ovr'ld in part on other grounds, Bailey v. State (1985), Ind., 472 N.E.2d 1260. We find the o......
  • Sauerheber v. State, No. 89S00-9701-CR-18
    • United States
    • Indiana Supreme Court of Indiana
    • September 1, 1998
    ...or words that convey a similar meaning. We have previously held that the exact words of the statute need not be employed. Smith v. State, 465 N.E.2d 702, 704...
  • Myers v. State, No. 985S369
    • United States
    • Indiana Supreme Court of Indiana
    • August 3, 1987
    ...the charges against Page 1367 her so she may anticipate the proof and prepare a defense in advance of trial. Smith v. State (1984), Ind., 465 N.E.2d 702, 704. Consistency between the allegations charged and the proof adduced is required out of deference for the accused's constitutional righ......
  • Huffman v. State, No. 49S00-8602-CR-207
    • United States
    • Indiana Supreme Court of Indiana
    • September 7, 1989
    ...trial court has wide latitude in ruling on the admissibility of the evidence in determining its relevancy. Smith v. State (1984), Ind., 465 N.E.2d 702. We agree with the trial court that the traffic accident chart was irrelevant to appellant's case. Additionally, we fail to see how appellan......
  • Request a trial to view additional results
32 cases
  • Kindred v. State, No. 285S67
    • United States
    • Indiana Supreme Court of Indiana
    • June 8, 1988
    ...of the charges against him so that he may anticipate the proof and prepare a defense in advance of trial. Smith v. State (1984), Ind., 465 N.E.2d 702; Griffin v. State (1982), Ind., 439 N.E.2d 160, ovr'ld in part on other grounds, Bailey v. State (1985), Ind., 472 N.E.2d 1260. We find the o......
  • Sauerheber v. State, No. 89S00-9701-CR-18
    • United States
    • Indiana Supreme Court of Indiana
    • September 1, 1998
    ...or words that convey a similar meaning. We have previously held that the exact words of the statute need not be employed. Smith v. State, 465 N.E.2d 702, 704...
  • Myers v. State, No. 985S369
    • United States
    • Indiana Supreme Court of Indiana
    • August 3, 1987
    ...the charges against Page 1367 her so she may anticipate the proof and prepare a defense in advance of trial. Smith v. State (1984), Ind., 465 N.E.2d 702, 704. Consistency between the allegations charged and the proof adduced is required out of deference for the accused's constitutional righ......
  • Huffman v. State, No. 49S00-8602-CR-207
    • United States
    • Indiana Supreme Court of Indiana
    • September 7, 1989
    ...trial court has wide latitude in ruling on the admissibility of the evidence in determining its relevancy. Smith v. State (1984), Ind., 465 N.E.2d 702. We agree with the trial court that the traffic accident chart was irrelevant to appellant's case. Additionally, we fail to see how appellan......
  • Request a trial to view additional results

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