Spaulding v. State, No. 1076S359

Docket NºNo. 1076S359
Citation268 Ind. 23, 373 N.E.2d 165
Case DateMarch 09, 1978
CourtSupreme Court of Indiana

Page 165

373 N.E.2d 165
268 Ind. 23
Eddie Lee SPAULDING, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 1076S359.
Supreme Court of Indiana.
March 9, 1978.

[268 Ind. 25]

Page 166

Richard M. Orr, Indianapolis, for appellant (defendant below).

Theo. L. Sendak, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

PRENTICE, Justice.

Defendant (Appellant) was charged by way of information with the commission of a felony while armed, to-wit: rape. He was tried by a jury, found guilty and sentenced to the Indiana Department of Corrections for a period of twenty (20) years. He presents the following issues on appeal:

(1) Whether the trial court committed reversible error in refusing to give defendant's tendered instruction No. 2 which related to the degree of resistance required of a woman to render sexual intercourse a rape.

(2) Whether the trial court committed reversible error in giving State's tendered instruction No. 1 regarding evidence of flight by an accused.

(3) Whether the trial court committed reversible error in allowing certain testimony to be admitted over objection by the defendant that it was outside the scope of the State's response to a discovery order.

(4) Whether the verdict was supported by sufficient evidence.

ISSUE I

At the close of evidence the defendant tendered his instruction No. 2 to the court, the refusal of which he now alleges as error. The instruction stated:

Page 167

"The rape victim must resist to a degree which would indicate the act was against her will.

"However, the resistance necessary to be used by a woman allegedly raped to prevent the sexual act need not be the use of all the physical force of which she is capable, but it is sufficient if she, in good faith, uses reasonable resistance."

Although the defendant correctly contends that the State must establish that the act was done against the will of the [268 Ind. 26] victim, Shephard v. State, (1946) 224 Ind. 356, 67 N.E.2d 534, he incorrectly states the law as to the evidence required to prove this element. Defendant's tendered instruction might imply that the victim must use some manner of physical force to resist the attacker in order for the act to have been done against the victim's will. As was stated in Beard v. State, (1975) 262 Ind. 643, 323 N.E.2d 216 at p. 218, "physical resistance is not required where prevented or averted by threats and fear." In the instant case, there was evidence presented indicating that the attacker was armed with a sawed-off shotgun which he used to threaten the victim. Regardless of whether or not the tendered instruction was a correct statement it was not error to refuse it, because the subject matter was adequately covered by instructions Nos. 32 and 33 given at the close of the evidence. It is a well settled rule that an instruction may be properly refused if the subject matter is covered in other instructions given by the court. Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770. We do not agree with Defendant's statement that the instructions given upon the subject were "vague and rambling."

ISSUE II

Appellate Rule 8.3 requires an appellant predicating error upon the giving of an instruction, to set out in the argument section of his brief the verbatim objection made thereto, as well as the verbatim instruction. Defendant has failed to comply with this rule, and the error, if any, is deemed waived.

ISSUE III

During the course of the State's case-in-chief, Detective Trina was called to testify as to certain facts surrounding the investigation of the alleged crime. He testified generally as to his training in various...

To continue reading

Request your trial
15 practice notes
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...instructions verbatim in his brief as required by AP 8.3(A)(7), Snyder has waived error, if any. Spaulding v. State (1978), Ind., 373 N.E.2d 165; Patterson v. State (1978), Ind., 371 N.E.2d 1309; Buchanan v. State (1975), 263 Ind. 360, 332 N.E.2d 213. In addition, each of the requested inst......
  • Shepler v. State, No. 180S2
    • United States
    • Indiana Supreme Court of Indiana
    • November 7, 1980
    ...instruction may be properly refused if the subject matter is covered in other instructions given by the court." Spaulding v. State, (1978) 268 Ind. 23, 26, 373 N.E.2d 165, ISSUE XII Defendant, by his brief, alleges and complains that the court would neither provide funds to hire an investig......
  • Williams v. State, No. 2-577A189
    • United States
    • Indiana Court of Appeals of Indiana
    • August 1, 1979
    ...refused if the subject matter of the instruction is adequately covered by other instructions. E. g., Spaulding v. State, (1978) Ind., 373 N.E.2d 165; Patterson v. State, (1978) Ind., 371 N.E.2d 1309; Timm v. State, (1976) 265 Ind. 537, 356 N.E.2d 222. The two instructions given by the court......
  • Grassmyer v. State, No. 1081S309
    • United States
    • Indiana Supreme Court of Indiana
    • December 28, 1981
    ...for reversal because the substance of the tendered instruction was given by the court in other instructions. Spaulding v. State, (1978) 268 Ind. 23, 373 N.E.2d 165; Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770. The court read the following instructions covering the issue of the test t......
  • Request a trial to view additional results
15 cases
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...instructions verbatim in his brief as required by AP 8.3(A)(7), Snyder has waived error, if any. Spaulding v. State (1978), Ind., 373 N.E.2d 165; Patterson v. State (1978), Ind., 371 N.E.2d 1309; Buchanan v. State (1975), 263 Ind. 360, 332 N.E.2d 213. In addition, each of the requested inst......
  • Shepler v. State, No. 180S2
    • United States
    • Indiana Supreme Court of Indiana
    • November 7, 1980
    ...instruction may be properly refused if the subject matter is covered in other instructions given by the court." Spaulding v. State, (1978) 268 Ind. 23, 26, 373 N.E.2d 165, ISSUE XII Defendant, by his brief, alleges and complains that the court would neither provide funds to hire an investig......
  • Williams v. State, No. 2-577A189
    • United States
    • Indiana Court of Appeals of Indiana
    • August 1, 1979
    ...refused if the subject matter of the instruction is adequately covered by other instructions. E. g., Spaulding v. State, (1978) Ind., 373 N.E.2d 165; Patterson v. State, (1978) Ind., 371 N.E.2d 1309; Timm v. State, (1976) 265 Ind. 537, 356 N.E.2d 222. The two instructions given by the court......
  • Grassmyer v. State, No. 1081S309
    • United States
    • Indiana Supreme Court of Indiana
    • December 28, 1981
    ...for reversal because the substance of the tendered instruction was given by the court in other instructions. Spaulding v. State, (1978) 268 Ind. 23, 373 N.E.2d 165; Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770. The court read the following instructions covering the issue of the test t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT