Taylor v. State

• Decision Date: 04 February 1957
• Docket Number: No. 29366,29366
• Citation: 236 Ind. 415,140 N.E.2d 104
• Parties: Joe Robert TAYLOR, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 104

140 N.E.2d 104

236 Ind. 415

Joe Robert TAYLOR, Appellant, v. STATE of Indiana, Appellee.

No. 29366.

Supreme Court of Indiana.

Feb. 4, 1957.

Rehearing Denied March 8, 1957.

Howard R. Hooper, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., of Indiana, Owen S. Boling, Harriette Bailey Conn, Deputy Attys. Gen., for appellee.

BOBBITT, Judge.

Appellant was charged by affidavit under Acts 1941, ch. 148, § 6, p. 447, being § 10-4101, Burns' 1956 Repl., with inflicting physical injury with 'a deadly and dangerous weapon or instrument,' while attempting to commit a robbery, tried by jury, found guilty, and sentenced to life imprisonment.

Three errors are assigned here on appeal.

1. That the Court erred in overruling appellant's Motion to Quash the amended affidavit.

2. That Court erred in overruling appellant's Motion to Arrest the judgment.

3. That Court erred in overruling appellant's Motion For a New Trial.

We shall consider these in the order named.

First: The motion to quash averred that (1) the facts stated in the amended affidavit do not constitute a public offense; and (2) the offense charged is not stated with sufficient certainty.

Section 10-4101, supra, provides, in part, as follows:

'Whoever inflicts any wound or other physical injury upon any person with any firearm, dirk, stiletto, bludgeon, billy, club, blackjack, or any other deadly or dangerous weapon or instrument while engaged in the commission of a robbery, or while attempting to commit a robbery, shall, upon conviction, be imprisoned in the state prison for life.' (Our italics).

That part of the amended affidavit questioned by appellant is as follows:

'* * * the said Joe Robert Taylor, while engaged in committing the attempted robbery as aforesaid, did then and there unlawfully and feloniously inflict a physical injury, to-wit: a wound in and upon the head of the said Ruth Lee with a deadly and dangerous weapon or instrument, the exact nature of which is to the affiant unknown, then and there held in the hand of the said Joe Robert Taylor, * * *.'

Appellant contends that (1) the averment of a 'deadly and dangerous weapon or instrument, the exact nature of which is to the affiant unknown,' does not apprise the appellant of the character of the charge against him; (2) that this averment relates to a material element of the alleged offense; and (3) that the amended affidavit wholly fails to aver that appellant used any of the weapons described in the statute.

We concur in appellant's statement that it is the well established rule in this State that the particular crime with which the defendant is charged must be shown with such reasonable certainty, by express averments as will enable the court and jury to distinctly understand what is to be tried and determined, and to fully inform the defendant of the particular charge which he is required to meet. The averments must be so clear and distinct that there may be no difficulty in determining what evidence is admissible thereunder. Funk v. State, 1898, 149 Ind. 338, 340, 49 N.E. 266; McCloskey v. State, 1944, 222 Ind. 514, 518, 53 N.E.2d 1012; Madison v. State, 1955, 234 Ind. 517, 130 N.E.2d 35.

However, it is likewise the well settled rule that an offense need not be charged in the exact language of the statute, but words which import the same meaning will be sufficient. Madison v. State, supra; Kistler v. State, 1921, 190 Ind. 149, 152, 129 N.E. 625.

The averment here which appellant asserts is insufficient, states that the alleged physical injury was inflicted with 'a deadly or dangerous weapon or instrument, the exact nature of which is to the affiant unknown.' The words 'deadly or dangerous weapon or instrument' are the exact words used in the statute; and this court has recently held that, 'if the character of the instrument used in the assault * * * is unknown, it may be accordingly alleged that it is unknown in the charge or indictment.' State v. Carrier, 1956, 235 Ind. 456, 134 N.E.2d 688, 690. See also: Waggoner v. State, 1900, 155 Ind. 341, 58 N.E. 190, 80 Am.St.Rep. 237.

For the reasons above stated the trial court did not err in overruling the Motion to Quash, and for the same reason there was no error in overruling the motion in arrest of judgment.

Second: Appellant asserts that the verdict of the jury is contrary to law because he was of unsound mind at the time the crime was committed. He further asserts that the jury 'arbitrarily rejected, * * * evidence of insanity.' The evidence on appellant's insanity is in conflict. An examination of the evidence most favorable to the State on this point discloses the following:

The crime charged occurred about 3:30 A.M. on April 16, 1950. Appellant was at the time employed at a filling station where he did 'very good work.' Appellant was arrested on April 19, 1950 and at that time the arresting officers testified that he seemed 'rational' as was the case on subsequent occasions wnen they talked with him.

Appellant was examined by physicians on July 2, 4, 5 and 6, 1950. One of the doctors testified that appellant was afflicted with the type of cerebral dysrhythmia called epileptic equivalent, the chief characteristic of which is disturbance in behavior; that there is no set pattern of behavior of a person having seizures, but the manifestations are abnormal behavior; that such manifestations are not present at all times and when the epileptic equivalent is in remission, the person would know right from wrong, the nature of his acts and their consequences. This doctor was unable to express an opinion as to whether or not appellant was suffering from such epileptic seizure on April 16, 1950. The evidence further shows that appellant's history disclosed that he had, since 1948, been subject to what one of the doctors classified as 'real' epileptic seizures with physical involvment as distinguished from mental epileptic equivalent which he felt appellant had in 1950.

There is no evidence as to appellant's behavior at the time of the commission of the crime. However, it appears to us that while appellant may at times have suffered from mental derangement, the jury could reasonable have found from the evidence above summarized that appellant was criminally responsible at the time the offense was committed.

'Where there is mental capacity sufficient to fully comprehend the nature and consequences of an act, and unimpaired will power strong enough to master an impulse to commit a crime, there is criminal responsibility.' Good-win v. State, 1884, 96 Ind. 550, 560.

It seems to us that the facts and circumstances in this case bring it clearly within the rule as quoted, with approval, in Limp v. State, 1950, 228 Ind. 361, 366, 92 N.E.2d 549, 551, as follows:

"The state introduced no evidence in rebuttal on the question of appellant's sanity, and for this reason appellant insists that the verdict was contrary to law. The substance of the argument is that, as appellant offered evidence tending to prove appellant's unsoundness of mind, the jury was bound to acquit, in the absence of direct proof ot the contrary. Unquestionably the sanity of the defendant must appear beyond a reasonable doubt, and, when the presumption of sanity that attends every one...