State v. Smith
| Decision Date | 23 September 1980 |
| Docket Number | No. 1-480A73,1-480A73 |
| Citation | 409 N.E.2d 1199 |
| Parties | STATE of Indiana, Plaintiff-Appellant, v. Richard Keith SMITH, Defendant-Appellee. |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for plaintiff-appellant.
Harriette Bailey Conn, Public Defender, Kurt A. Young, Deputy Public Defender, Indianapolis, for defendant-appellee.
This is an appeal upon a reserved question of law under Ind.Code 35-1-47-2 from a judgment "directing a verdict" in favor of the defendant, Richard Keith Smith (Smith), at the close of the State's evidence upon the charge of attempted murder.
The appeal is sustained.
In the evening of August 10, 1979, Smith, and his uncle, Melvin Howell, were heavily engaged in a drinking bout in New Albany, Floyd County, Indiana. Though they had never had trouble before, for obscure reasons they fell to quarreling. While the parties dispute which one was the aggressor, it is admitted that Smith stabbed his uncle in the chest twice. The uncle then fled up the street, pursued by Smith, the latter shouting unintelligible epithets at his uncle as they ran. The uncle collapsed from weakness a block away and when Smith approached, his mood had changed.
He was remorseful and wept. Smith then dragged Uncle Melvin into the uncle's car, threw away the knife, "floored the accelerator," and sped up Pearl Street, his destination being the Floyd Memorial Hospital. At this point a policeman, Corporal Victor Steward, becomes the chronicler of events. He observed Smith going north on Bono Road where Smith's car crashed into a parked automobile. Stewart, with lights flashing and siren wailing, went in pursuit of the speeding Smith who, upon disentangling his car from the parked car, had accelerated at high speed, with lights out, down Conner Street. Smith finally arrived at the hospital without further recorded incident. Examination by physicians at the hospital revealed that Uncle Melvin had suffered two deep stab wounds between his ribs and close to his heart which had penetrated and collapsed both lungs. Astonishingly, Uncle Melvin survived his wounds and his transportation to the hospital and recovered to testify against his assailant.
Smith was charged with attempted murder under Ind.Code 35-41-5-1 and with battery. The record does not disclose the disposition of the battery count.
After the State had rested its case-in-chief, the trial court sustained Smith's motion for a "directed verdict," more properly denominated as a judgment on the evidence under Ind. Rules of Procedure, Trial Rule 50 on the basis of abandonment. This appeal by the State upon a reserved question of law assigns the sole issue as follows:
"Whether the trial court erred in ruling that appellee, Richard K. Smith, had abandoned the crime of attempted murder after he had inflicted serious knife wounds upon his intended victim."
DISCUSSION AND DECISION
The statutes relevant here to define the offense of attempted murder are as follows:
Ind.Code 35-42-1-1 (Supp.1980):
"A person who:
(1) knowingly or intentionally kills another human being; . . .
commits murder, a felony."
Ind.Code 35-41-5-1 (Supp.1980):
"(a) A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. . . . an attempt to commit murder is a Class A felony."
The statute which provides the defense of abandonment is as follows:
Ind.Code 35-41-3-10 (Supp.1980):
"With respect to a charge under IC 35-41-2-4, IC 35-41-5-1, or IC 35-41-5-2, it is a defense that the person who engaged in the prohibited conduct voluntarily abandoned his effort to commit the underlying crime and voluntarily prevented its commission."
The thrust of Smith's argument, and seemingly the theory relied upon by the trial court, is that after the stabbing, and after the uncle had collapsed and was at Smith's mercy, Smith abandoned the effort to commit the underlying offense of murder and voluntarily prevented its commission.
The State argues that the defense of abandonment is not available in a case of attempted murder where the defendant's attempt has resulted in the wounding of the intended victim. In such case, the "effort to commit the underlying crime" has been completed and cannot be abandoned.
The Indiana Criminal Law Study Commission Comments on Ind.Code 35-41-3-10 reflect that this section is a codification of existing law as announced in Hedrick v. State, (1951) 229 Ind. 381, 98 N.E.2d 906. West's AIC 35-41-3-10. In Hedrick, supra, the court approved instructions relative to abandonment by one of a group of participants. Those instructions essentially said that where one has aided and encouraged the commission of an offense, he may, nevertheless, before completion of the offense, withdraw all his aid and encouragement and escape criminal liability for the completed offense. To constitute abandonment, there must be some appreciable interval between the alleged abandonment and the act. The defendant must have effectively detached himself from the criminal enterprise before the act with which he is charged is in the process of consummation or has become so inevitable that it cannot reasonably be stayed. The process of detachment must be such that it will not only show a determination upon the part of the accused to go no further, but also give his co-conspirators a reasonable opportunity, if they desire, to follow his example and refrain from further action before the act in question is committed.
The rule in Hedrick, supra, was followed in Harrison v. State, (1978) Ind., 382 N.E.2d 920, and Barnes v. State, (1978) Ind., 378 N.E.2d 839. In Barnes, supra, the court further pointedly stated that in order for the defendant to validly assert the defense of abandonment, it must be shown that his renunciation of the criminal plan occurred both voluntarily and prior to the time when the criminal act was completed.
The views expressed in Hedrick, Barnes, and Harrison, supra, find support in textbooks and from the drafters of the Model Penal...
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Vaughn v. State, 3-581A135
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§ 27.08 Defense: Abandonment
...App. 1991); State v. Mahoney, 870 P.2d 65, 71 (Mont. 1994).[185] American Law Institute, Comment to § 5.01, at 356.[186] State v. Smith, 409 N.E.2d 1199, 1202 (Ind. Ct. App. 1980); Bowen v. Commonwealth, 605 S.W.3d 316, 320 (Ky. 2020).[187] Sheckles v. State, 501 N.E.2d 1053, 1056 (Ind. 198......
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TABLE OF CASES
...(Pa. 1978), 446 Smith, People v., 124 P.3d 730 (Cal. 2005), 121 Smith, People v., 337 P.3d 1159 (Cal. 2014), 410, 453 Smith, State v., 409 N.E.2d 1199 (Ind. Ct. App. 1980), 385 Smith, State v., 490 N.W.2d 40 (Wisc. 1992), 117 Smith, State v., 554 A.2d 713 (Conn. 1989), 562 Smith, State v., ......
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§ 27.08 DEFENSE: ABANDONMENT
...1991); State v. Mahoney, 870 P.2d 65, 71 (Mont. 1994).[185] . American Law Institute, Comment to § 5.01, at 356.[186] . State v. Smith, 409 N.E.2d 1199, 1202 (Ind. Ct. App. 1980); accord State v. Mahoney, 870 P.2d at 71.[187] . Sheckles v. State, 501 N.E.2d 1053, 1056 (Ind. 1986); People v.......