Smith v. State
| Citation | 235 N.E.2d 177,250 Ind. 125 |
| Decision Date | 02 April 1968 |
| Docket Number | No. 31048,31048 |
| Parties | Harrison SMITH, Appellant, v. The STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Harold Meloy, Robert L. Sheaffer, Shelbyville, for appellant.
John J. Dillon, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.
The appellant herein is appealing from a conviction in the Circuit Court of Shelby County of murder in the second degree.
Prosecution was commenced on the basis of an indictment charging appellant with murder in the first degree; appellant entered a plea of not guilty and thereafter trial was had by jury. The trial resulted in the jury finding appellant guilty of murder in the second degree, and upon this verdict the court rendered judgment accordingly and sentenced appellant to the Indiana State Prison for life.
The error assigned and relied upon by the appellant is the overruling of his motion for new trial. Appellant first argues in his brief, that the court erred in refusing to give to the jury, at the request of the defendant, defendant's written instructions numbered 4, 5, 8, and 12.
Appellant relies on McDougal v. State (1882), 88 Ind. 24 to support his contention that the court erred in not giving his tendered instruction number 4 which reads as follows:
'The Court instructs you that there can be no criminal intent when the mental condition of the accused is such that he in incapable of forming one; and hence it must appear from the evidence beyond a reasonable doubt that, at the time of the commission of the offense charged, the mental condition of the defendant was such that he was capable of forming an intent.'
In McDougal, supra, the defendant therein placed his sanity in issue by a defense of not guilty by reason of insanity. In such a case the trial court may properly give an instruction to the effect that the mental condition of the defendant must be such that he was capable of forming an intent. However, in the instant case the issue of appellant's sanity was not before the jury since appellant had made a written withdrawal of his plea of not guilty by reason of unsoundness of mind.
Appellant next alleges that it was error for the court to refuse to give his tendered instruction number 5 for the reason that no instruction was given by the court to cover this point of law. The tendered instruction reads as follows:
'The Court instructs you that if the killing was intentionally done, in hot blood engendered by a combat, without malice, it is no more than manslaughter.
The Court further instructs you that no killing in a combat which engenders hot blood, however unlawful, can be murder even in the second degree, unless the elements of purpose and malice concur in the act. Such a killing may amount to manslaughter, but it can not be murder in either degree.'
In essence appellant argues that the above instruction is a definition of manslaughter under Indiana law. We cannot agree, and for the reason that it is an incorrect statement of the law the trial court was correct in refusing to give the instruction. Johnston v. State (1952), 230 Ind. 571, 105 N.E.2d 820. The proper definition of manslaughter is set forth in Ind.Ann.Stat. § 10--3405 (1956 Repl.) as follows:
'Whoever voluntarily kills any human being without malice, expressed or implied, in a sudden heat, or involuntarily in the commission of some unlawful act, is guilty of manslaughter * * *.'
The court did give the correct definition of manslaughter in its own instruction number 8 and in accordance with the statutory definitions:
'Before the Defendant can be convicted of manslaughter, as charged in the indictment, the evidence must have been proved beyond a reasonable doubt, that at Bartholomew County, State of Indiana, and within five (5) years before the return of the indictment, the Defendant did unlawfully shoot and kill Donna Faye Smith in the manner and as alleged in the indictment, without malice, express or implied, either voluntarily in a sudden heat, or involuntarily in the commission of some unlawful act.'
No error is committed when a court refuses a tendered instruction which is substantially covered by other instructions given by the trial court. Gayer v. State (1965), Ind., 210 N.E.2d 852. The trial court's instructions numbered 18, 19 and 29 substantially cover the matter contained in appellant's requested instruction number 8 with regard to the question of credibility of witnesses, the presumption of innocence and the jury's right to determine the law. These instructions read as follows:
Defendant's tendered instruction number 8.
'The jury may elect to disbelieve all of the witnesses who have testified against the defendant and to find him not guilty on the strength of the presumption of innocence which the law indulges in favor of all persons accused of crime, or the jury may exercise its power to determine the law and acquit him in the face of any evidence adduced.'
Court's instruction number 18.
Court's instruction number 19.
Court's instruction number 29.
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