Stout v. State

• Decision Date: 26 November 1974
• Docket Number: No. 373,373
• Citation: 262 Ind. 538,319 N.E.2d 123
• Parties: Thomas Lee STOUT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). S 34.
• Court: Indiana Supreme Court

Page 123

319 N.E.2d 123

262 Ind. 538

Thomas Lee STOUT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 373 S 34.

Supreme Court of Indiana.

Nov. 26, 1974.

Rehearing Denied Jan. 10, 1975.

J. E. Holwager, Holwager & Harrell, Beech Grove, for appellant.

Theodore L. Sendak, Atty. Gen., David A. Miller, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial to the judge of Assault and Battery with Intent to Kill and of Kidnapping, being respectively Burns Ind.Stat.Ann. § 10--401a (Acts 1959, ch. 49, § 1, p. 119), IC 35--13--2--1 and Burns Ind.Stat.Ann. § 10--2901 (Acts 1905, ch. 169, § 358, p. 584; 1929, ch. 154, § 1, p. 477), IC 35--1--55--1. Two issues are presented by his appeal, to-wit:

(1) Sufficiency of the evidence.

(2) Illegality of the sentencing.

ISSUE I. Defendant's argument upon the sufficiency issue is addressed primarily to the kidnapping conviction; however, his theory, if supportable, is applicable to both crimes. It is his contention that at the time he committed the illegal acts he was incapable, by reason of alcohol and drug ingestion, of the requisite specific intent.

While voluntary intoxication is not a defense in a criminal proceeding, it is, nevertheless, well recognized that the absence of a specific intent, regardless of the cause of such mental state, is a defense to any crime requiring such an intent. To this extent, mental incapacity, although occasioned by the voluntary ingestion of alcohol or drugs, is a defense. The existence of this mental condition or incapacity, however, is a question of fact to be determined by the trier thereof--in this case, the trial judge. Preston v. State (1972), Ind., 287 N.E.2d 347; Daniels v. State (1971), 257 Ind. 376, 274 N.E.2d 702; New v. State (1970), 254 Ind. 307, 259 N.E.2d 696.

Given the foregoing, we acknowledge that the apparent senselessness of the defendant's actions in committing the assault and battery and the abduction of the State's witness would be persuasive factors and that there was evidence of consumption of a substantial amount of alcohol and of some drugs shortly prior to such acts. The defendant fired a shotgun at his friend's automobile and at his own house, without apparent reason or motivation. He pointed the gun at the husband of the prosecuting witness while the witness and her husband were stopped in their automobile at a traffic signal. He fired into the automobile, striking both the prosecuting witness and her husband, both of whom were strangers to him. He ordered both from the automobile, and after they alighted he ordered the prosecuting witness back in. He then entered the driver's seat and drove away. After driving approximately one mile, he stopped for a traffic signal, whereupon the witness escaped. The foregoing appear to be the acts of a maniac.

On the other side of the scales, the trial judge also considered that the prosecuting witness testified that although the foregoing related acts did not appear to be those of a rational and sane man, the defendant behaved normally during the ride, during which time he conversed normally with her, expressed concern for the blood on her face and declined her request to tell her where he was taking her. Shortly after his escape, the defendant returned to his friend previously mentioned and told him that he was in trouble.

From the foregoing, we find that there was substantial evidence of probative value from which the trial judge could properly find that at the time the defendant committed the unlawful acts he was possessed of sufficient mental capacity to have formed the requisite specific intent. We will disturb the determination of the trier of fact only when the evidence is without conflict, leads to but one reasonable conclusion and the trier of fact reaches a contrary conclusion. Williams v. State (1973), Ind., 304 N.E.2d 311; Turner v. State (1972), Ind., 287 N.E.2d 339; Pinkerton v. State (1972), Ind., 283 N.E.2d 376; Fuller v. State (1971), 256 Ind. 681, 271 N.E.2d 720.

ISSUE II. The trial court did not sentence the defendant until forty-eight days after the finding of guilty upon a plea of not guilty, notwithstanding the Criminal Rule 11 requirement that it be done within thirty days. Defendant contends that under the rule and the case law, the court lost jurisdiction of the defendant when it failed to comply with the time requirement. Arnold v. State (1973), Court of Appeals, Third District, 300 N.E.2d 135 is clearly against him, in view of his failure to object, and he has cited McMinoway v. State (1973), Ind., 294 N.E.2d 803 as authority for the...