Defries v. State

any authority would have the to set time limitation just liability, indispensable such which seems to me governing liability remote rule of law of a builder purchasers he of the houses builds sells.

Prentice, J., concurs. Reported at 342 N.E.2d

Note. —

Harold Defries State of Indiana. E. February 26, Filed 1976.] 975S223.

[No. Kentland, appellant. Stephen Ralph Bower, Bower, for of Dwyer, Attorney General, E. Sendak, Robert Theodore L. General, Attorney appellee. Deputy for Appellant’s conviction for Hunter, J. opinion appearing by Appeals in

was affirmed Court of the trans- Appellant petitioned at 319 this Court N.E.2d 837. arguments majority Court A of fer oral were heard. this and Appeals, of we and concurs in the result reached Court adopt opinion now their as follows: “HOFFMAN, JUDGE. CHIEF judgment appeal conviction entered “This arises from a of a against (Defries) upon appellant Harold E. Defries Following aggravated Defries battery. trial charge of assault and imprisonment by for not overruling term jury, sentenced of was to a years. Upon the than more than five less one nor per- errors, he correct of motion to appeal. this

fected in to the State favorable inferences most “The facts on approximately 10 P.M. at :30 the record establish the driving 9, 1973, appellant Defries night of June Rensselaer, area in residential in a Street south on Weston speed high con- Indiana, dition. or section section, in an intoxicated rate at a playing were time, group children At south inter- Street of its lane Weston near the west light Street; inter- street at the due Oak were visible from distance the children approached the intersection Defries As block. north, (Osborn), Osborn who was seen Jim he was then on Defries intersection Oak Street. approaching the obliging intersection, thereby Osborn stop failed to stop him. to avoid children, Jerry (Jerry) had group Justice “One of decided arrival at inter- Defries’ before a few moments group children, section leave had crossed Rhonda, Jerry’s sister, 9-year the east side of Weston. old apparently then him the street. decided to follow across placed street, When she path herself crossed Rhonda sped through Defries’ auto as it the intersection straddling approximately the center line. Defries skidded sixty-eight an striking throwing feet before Rhonda her sixty-seven impact. point additional feet from all, ninety-six stop- In ping. estimated Defries’ vehicle skidded feet before through speed His as he traveled the intersection was per at from to miles hour. striking Rhonda, stopped momentarily, “After Defries headlights off, proceeded turned his and then south to the point pavement. where she had come rest hastily home, then left Defries the area and returned to his whereupon neighbor picked up he to the returned injury. scene, scene of the vised Police Officer Once back at the Defries ad- Duncan, one, R. Robert ‘I’m the I hit her’, placed and was under arrest. appeal, challenges adequacy “On affidavit under presented Defries first charged. question he was This quash, trial court a motion to has and1 preserved properly appeal. for specificity charging “The standards of affidavits of indictments and in at appellant effect the time the herein was charged, therefor, reasons are well stated in Blackburn State, (1973) 5, v . Ind. 260 291 N.E.2d 686 at 690: “ state, charged ‘In this offense in indictment must certainty court, accused, be stated with such that the jury may and the determine the crime for which con- sought. 1971, viction is Ann. IC 35-1-23-25 Ind. Stat. [Burns’ (1956 Repl.)]; (1968), 9-1126 Thomas v. State § 76, 20; rehearing denied; Ind. 238 251 N.E.2d See also (1966), 426, Ind. 539, Noel v. State 247 215 N.E.2d re- hearing given denied. The defendant must be sufficient prepare information to enable him defense put he jeopardy assure that will not twice be in Const, I, 13; crime. Ind. art. same See v. Brown State § (1935), However, 208 Ind. 196 N.E. 696. certain may quash prop- details erly omitted and a motion be denied unless the indictment is be so uncertain and quash by former “1. The function of the motion is now fulfilled dismiss, provisions under new of the motion Indiana Code enacted in 1971, §35-3.1-1-4, (Burns IC Ind. Ann. Stat. § See: 9-906 35-3.1-1-8, (Burns Supp.) Ind. Ann. and IC Stat. § § 9-910 Supp.). charge cannot ascer be the nature of indefinite that 9- Ann. Ind. Stat. 35-1-23-26 tained. IC [Burns’ § Kennedy (1935), Ind. (1956 Repl.)] v. State rehearing 287, 196 denied.’ N.E. 316 charges crime question with the Defries “The affidavit in substantially lan- aggravated battery in the Ann. Stat. of guage assault and 35-13-3-1, statute, of the IC identity alleging (Burns 1974), Supp. 10-410 also while It is of the offense. and the date of the victim contention that the operated gravamen Defries is the offense reckless a wanton and motor vehicle in such doing aggravated injury another in so manner that his may be- Appellant asserts that further deemed willful. operation motor the reckless crime involves cause vehicle, the must contain: affidavit “ allegations make what facts ‘[sjpecific exist which (or reck- death) was due to the appear that safety brief, disregard Appellant’s others.’ less p. 19. support of by appellant “However, the authorities cited inapposite they pertain contention are this manslaughter. involuntary homicide and crimes of reckless driving or of reckless It true that the unlawful act act alleged proximately death must be caused a which affidavit homicide because between such acts as delineated gist manslaughter charging involuntary reckless relationship proximate the existence of a gist is the of these crimes and a death contrast, by respective statutes. their offense of 1971, 35-13-3-1, supra, willful, by is the unlaw- delineated IC disfigurement great bodily harm ful infliction here issue stated these another. The affidavit elements certainty. plainly the offense and with point “Appellant’s must considered contention on prove the State intended to his criminal to be that because from certain inference of his acts, he entitled to be advised acts of such through charged. which he is Such the affidavit criminal is erroneous. existence of contention as a state of in actor is an mind an ultimate fact which by the trier of from circumstances inferred the fact be by surrounding act as revealed the Farno evidence. See App. 627, (1974) 159 Ind. 308 N.E.2d However, evidentiary the from therein. cases cited which such ultimate facts proved alleged must need facts be not be Schell, (1967) 248 indictment or affidavit. State v. in an Therefore, the the omission 224 N.E.2d 49. the charging the from which herein of acts affidavit cannot by appellant’s fact intent was inferred the trier of Furthermore, not regarded improper. has as Defries rights any defense prejudice or his demonstrated to court, his briefs by reason of such omission the trial to argument. court, or oral to this the is whether “The next issue which must be considered overruling mis- appellant’s motion for trial court erred in trial by following to breath- reference witness a a a made limine, alyzer motion in which pre-trial test. Defries made a by prohibiting, granted court, part, refer- trial the breathalyzer The to test. ence to his refusal submit testimony objected during the case-in- to occurred State’s chief as follows: “ ‘Q. the, jury you into contact you came tell how Could with the defendant, you contact with where came him? “ the, Yes, Mr. Defries I came in contact with ‘A. sir. prior I that Dunes County And at the office of Jail. patrol and I was contacted on had been go jail that there had been Park to the Post — n operator request for a breathalizer object I move that “‘MR. To BOWER: that instructed that there is a motion and counsel be this this Court he invaded witness and has only I not move that prejudice of this defendant. witness, that the counsel but also conduct of request jury instructed and also a mistrial. “ approach the bench ? counsel Will ‘THE COURT: having (Counsel discussion at and the Court bench.) objection is motion sustained and “‘THE COURT: denied.’ requested appellant’s motion in limine “Inasmuch ‘ the defendant only offer evidence hat that the [t] State breathalyzer’, perceive it is difficult refused to submit testimony quoted invaded trial court’s the above

how testimony admitted The substance order thereon. into he contact with Defries when came that the officer breathalyzer request op- following for a jail came to jury have Surely the could not concluded from erator. statement appellant to submit breath- refused to a Additionally, there is it must be noted alyzer test. showing testimony eyewitness herein substantial intoxication following injury. granting “The or denial a motion rests of for mistrial court, ruling within the sound its discretion of the trial only upon showing will of be overturned of abuse State, that App. Ind. (1973) discretion. Prather v. 61, And, question be 301 N.E.2d 667. this must upon State, decided the facts of each case. White v. 64, slight, 257 Ind. very 272 N.E.2d 312. In view of the probably testimony more nonexistent, or question effect of the upon jury, it cannot said trial court be that the failing grant appellant’s request abused discretion in its Additionally, assuming arguendo, for a mistrial. that court, error was committed trial we would compelled to conclude that the error was harmless. issue “The third receive must consideration herein appellant’s the of involves lack of a valid driver’s license injury. the motion in limine references to appellant’s time An portion additional requested proscribe the trial court fact that driver’s license was suspended. portion The trial court denied this mo- such testimony tion and later admitted that when Defries was produce office, asked to driver’s license at the sheriff’s he could not do so. appellant’s inability produce “While a license at that respect time is immaterial with or to the issue the existence degree recklessness, his for which it must have concluded, offered, it must be that admission this attempt evidence was harmless error. The State not did license suspended, show had been nor that he previously arguably had committed acts reckless criminal resulting suspension. Rather, only in the it shown produce particular he did not equivocal by a license at a This time. prejudiced evidence could not appellant have contributing and, to the thus, verdict cannot warrant State, (1972) 418, reversal. Mitchell v. 259 Ind. 287 N.E.2d 860; State, (1900) 242, Keesier 154 Ind. 56 N.E. 232. v. “Appellant’s next two assertions error both involve the sufficiency support of the evidence herein to his conviction therefore, together. and, will be treated questions “It noted that when to be concerning the sufficiency presented evidence are appeal, on court may only consider that evidence which is most State, together to the logical favorable reasonable with all may inferences which be drawn there Further, weigh from. is not our function to the evidence credibility determine witnesses. v. McAfee (1973) 259 Ind. 291 N.E.2d 554. It has been held may be sustained a conviction circumstantial evidence value long probative alone so as the evidence is of such there- guilt drawn that a reasonable inference of 666. Gregory N.E.2d State, (1972) from. v. upon such part A conviction which rests in whole or in state this court can evidence as a be not will be reversed unless they persons, whether matter of law that reasonable jury inferences court, form or the trial could regard with to ascertain offense so each element of the material guilt beyond reasonable doubt. a defendant’s Guyton State, (1973) App. 299 N.E.2d 157 Ind. as stated assault and “The elements of supra, unlaw- 35-13-3-1, an intentional and 1971, are in IC great bodily upon another. harm ful infliction of 117, 292 State, (1973) 260 Ind. Priola v. N.E.2d bodily great that clearly The record discloses 604. Robert upon Justice. Officer harm inflicted Rhonda was injury, arriving upon that the scene of Duncan at stated Fur a wound.’ he thermore, arrival at found that Rhonda had ‘serious head observed upon her physician Rhonda who examined emergency Jasper County Hospital room large jagged ‘a the forehead’ as well laceration of Clearly evidence is sufficient ‘fracture of the femur.’ a great bodily permit trier to harm to was inflicted of fact find supra. State, v. her. Priola necessary sustain the intent convic- “As to to tion, intent Supreme it that our allowed must be noted has Court báttery commit be inferred State, (1918) Bleiweiss 188 similar circumstances. See: v. 184, holding point on this Ind. Bleiweiss 119 N.E. 375. Radley State, explained in 197 (1926) is well v. 97, 203-204, 98, at Ind. 150 N.E. as follows: “ unlawfully may to touch ‘The intent be inferred from doing probable the intentional of an act the result touching which will or be a rude insolent Thus, in- person of if a man another. should tentionally into people drive his car a crowd speed proba- at such a rate of that was not in ble drive over intended to strike street they get way, thereby should all out of the would against them, any inference he or somebody reasonably with his car could intentionally that he into from the fact be drawn the crowd drove Schutte, v. (1915) State 88 in that manner. 396, 96 659. Atl. N.J. Law “ person intentionally a drove ‘And the fact that auto- along speed city rate an unlawful street mobile at intersecting street on there which much across an travel, was very past dangerous he “knew what corner,” against passing motor and in the corner ran cycle street, support on the inference cross an was held motorcycle. striking of Bleiweiss N.E. damages unlawful intent driver State, (1918) 188 Ind. 119 N.E. v. But, liability while there civil striking, caused whether unlawful negligently, act wilfully was done or there can be criminal only responsibility intentionally. where it done [Cita injure may tion in And an intent not be omitted.] ferred of a ordinary care, proof from a lack of nor will mere negligent touching striking support or an inference negligent act was intent. done with unlawful liability To need [Citations create a civil there omitted.] nothing ordinary care, more than a lack of injury criminally causes an to another. to make But responsible tentional wilful, for such an there in must be conduct, injure known, tendency whose ought known, accompanied to be such wanton disregard probable consequences harmful imply wilful, to others as to the infliction of a intentional injury. State, supra, page [(1912), Luther v. on ; 177 Ind. N.E. Dunville 640] 373, 379, 123 N.E. 689.’ “The appellant evidence herein that drove his automobile through stop sign per at 50 to 60 miles intoxi- hour in an state, group cated toward a of children visible for a distance block, forcing intersecting of one while an automobile on an street stop disregard to avoid him shows his reckless consequences harmful to others in- while he probable tentionally tendency committed acts which had a known injure. Accordingly, jury’s finding to had the appellant requisite may by not be disturbed court. this presented by “The final appellant issue pro- concerns the priety give of the trial court’s refusal to his Tendered jury. Instruction to the stated, No. 8 The instruction essence, driving appellant’s that mere inadvertance [sic] support aggravated not would a conviction of assault and battery. assuming, deciding, Even without that such required case, ap- instruction was pellant’s in this the substance of was following instruction portions covered of the court’s Final Instruction No. 8: “ ‘You are instructed further to find the defendant aggravated guilty battery assault of or assault and battery there must be evidence of criminal But intent. may the intent be inferred from the circumstances which injure legitimately plied it. permit may Intent to not im- he * * ordinary a lack care. *. “ willful, in- was must there ‘Such circumstances show (sic) tendency tentional known, conduct whose ought known, accompanied a wanton or to be disregard probable conse- and reckless quences harmful suffer, likely to so are from which others together will- whole one the nature conduct wrong.’ ful, (Emphasis supplied.) intentional “Thus, allegation reversal. cannot warrant of error State, (1973) N.E.2d Martin having shown, judgment of error “No reversible the trial court must affirmed. “Affirmed. Staton, JJ.,

“Garrard concur.” grant re- upon further We transfer comment quired aggravated sustain a assault. conviction 35-13-3-1, charged violating

Appellant with Ind. Code was § 1974), provides: (Supp. which Burns 10-410 unlawfully in intentionally knowingly and “Whoever per great bodily disfigurement upon another flicts harm or guilty son is prison imprisoned in the state conviction shall be years, year five one nor more than less than [ 5] [ 1] any not to fine in amount exceed which added a [$1,000].” thousand dollars argument major premise is that above injury. great bodily requires inflict statute intent to contention, appellant support has referred us In of this Iowa Arizona. cases from Richardson, Iowa 162 N.W. State v. allegedly driving vehicle, which

28, the defendant was through an unequipped lighting, after dark Iowa with driving, speed. rate of While so at an excessive storm dust Horn, kneeling leg of one who was beside he ran over flat tire. attempting fix a his vehicle charged aggravated assault under

Richardson 1913), (Supp. CODE the IOWA §4771 provided: person any Bodily Injury. If with Intent “Assault to Inflict injury, great bodily assault another with intent to inflict exceeding one county jail imprisoned

he shall be year, imprisoned ing in not dollars, be exceeding or or be fined not five hundred reformatory exceed- penitentiary not in the or year.” [Emphasis added.] statute, in mind Under the Iowa “The intent assailant, . constitutes . the act in fact committed . not (1908) Mitchell, gist v. offense.” State Abridged Perkins, 455, 808; see also Iowa 116 N.W. 226-29 Informations, L. REV. Indictments and 12 IOWA active designed punish (1927). Hence, this statute is . . no “. state, mental Richardson that the statement negligence, reckless, supply specific matter can no how injure person” entirely named correct. comparing Richardson under

When Iowa statute charged appellant under which was Indiana statute following charged, ponder the it is instructive to observa- was tion the Richardson court: made being possible tried statute which “Defendant is not under He is ac- conceded be valid were enacted. having willfully, in- unlawfully feloniously, cused of jured having Horn, but assaulted Horn with intent upon great bodily injury ... Iowa him a .” 179 inflict 28, [emphasis 162 N.W. added]. prior Richardson, strik- neither knew nor Horn who saw ing him, thought that he run small had over some obstruc- might tion, part tire, lying road,” “like have charged assault, guilty guilty anof but was not of the offense requisite because he did not have the intent. Balderrama, Ariz. 397 P.2d State petition transfer, a appellant support

cited deadly weapon (automobile) conviction for assault with charged, Balderrama The statute under which reversed. STAT., provided: REV. 13-249 ARIZONA person person an assault an- “A other with a or who commits . deadly weapon instrument, by any or means great likely produce bodily injury, force shall punished by less imprisonment prison in the state for not exceeding than years, by one nor more ten than a fine not dollars, five thousand or both.” Supreme The Arizona were oc- there Court conceded that deadly might casions on which an automobile a be used as weapon, per se but refused to automobile hold was weapon. holding prohibit deadly a The effect of the towas prosecutions under the statute or of drivers who were drunk criminally negligent. reaching decision, the otherwise In its specifically court overruled its earlier Brimhall v. case of (1927) Ariz. upheld 255 P. which con- aggravated night viction for a driver drove at who wrong headlights road, an without on the side of the (A) speed. (5) unlawful ARIZONA REV. STAT. de- 13-245 § aggravated assault as: an fines “A. An assault or when committed following any

under circumstances: bodily injury upon “5. When serious is inflicted person assaulted.” overruling Brimhall, Supreme In made the Arizona Court policy upon clear the basis which it acted: today necessity “There no the courts to torture stat- problems presented by utes to cover the modern auto- mobile.” 397 P.2d 636. examining jurisdictions, law above had we also opportunity People an Hopper, to review 69 Colo. case, Hopper charged 152. In that P. W. J. with assaulting deadly weapon, to-wit, Frank W. Beard with a automobile, bodily injury an with intent upon to commit a Hopper charged person Beard. under provided: REV. STAT. COLORADO murder, rape, mayhem, robbery, “Assault to commit larceny —Deadly toeapon Penalty. — An murder, “SEC. 51. assault with an intent to commit rape, mayhem, robbery larceny subject or shall the offender the penitentiary to confinement in for a term of not less years. year An assault more than one nor than fourteen thing, deadly weapon, or with a instrument other bodily injury person upon intent to commit where another appears provocation or considerable where no malig- abandoned circumstances the assault show an misdemeanor, high adjudged heart, nant shall be be a any duly person thereof shall be fined convicted imprisoned exceeding sum not two thousand dollars and jail.” exceeding year [Emphasis county not in the added.] Supreme

The Colorado Court held that: part .“. . there was no on the evidence of a bodily either defendant to commit a injured party any person, could other and the defendant be convicted of an assault with to commit bodily charged injury as in the information.” statute, Under statute, the Colorado like the the circum- Iowa aggravated stance which the assault the mental makes is state of the actor. foregoing,

From the it will be noted that there are basic two aggravated type, forms illus- assault first statutes. by above, trated Colorado and Iowa laws set out “aggravating” particular circumstance is the state of mind actor, specifically, great bodily to do harm the victim. statute, battery required Under such a is not for a conviction. “aggravating” type statute, Under the second circumstance rather, intent, but, is not the seriousness the actor’s wicked touching. Technically, unpermitted it is misnomer a any kind, clearly, to refer such statute as an assault of a for required is to sustain a rather serious conviction. by type of statute evidenced AEIZONA STAT. This EEV. supra. (5), It (A) evidenced is also Ind. Code 13-245 § (1974 Supp.), supra. Burns 10-410 Our statute §35-13-3-1, § disfigurement great requires bodily harm or be inflicted. merely up pound tie his him intends to victim and who One tenderizing meat tool the head with a has not com- about aggravated assault the crime Indiana. On mitted piece legendary hand, if one throws of chalk at the other eggshell skull, strikes the victim victim the chalk with guilty under skull, perpetrator and fractures would be bodily great though do our he did not intend to statute even harm. here, persuasive are not

The decisions Iowa and Colorado rendered were the statutes under those decisions which recog- language traditionally has were written Moreover, requiring specific it cannot nized as intent. Assembly such unfamiliar with said the General aggravated language they adopted statute when assault (1974 e.g., 35-1-54-4, See, Burns 10-403 Ind. Code § § Gratify Battery with intent Supp.) sexual [Assault ; 35-1-54-3, 10-401 appetites] Burns Ind. Code desires or § § Battery Assault (1974 Supp.) with [Assault 35-13-2-1, 10-401a felony]; Burns Ind. Code to commit § Battery or Assault and to kill]. [Assault support conten- Arizona does not decision requires proof aggravated assault statute tion that our however, representative, Arizona specific intent. The case negligence arising use from the that criminal of the view law, automobile, satisfy a matter should not of an requirements battery statutes general of assault and mens rea require decision intent. The Arizona which do Assembly adopted after the General down until not handed position statute, taken but our Supreme one. was not a novel One writer Court Arizona in 1928: remarked common automobile came into use the statutes as “As soon forbidding in the various states with more enacted

were driving pro- degree particularity ‘reckless’ of or less But with tremendous viding increase fines for violation. the small automobiles the use of violations became in the dangers highways people frequent the on the more ordinary realization that the with the reck- greater. Faced very deterrent, driving not effective as a statute less believing penalty courts, that an increase in in a would the measure began evil, to convict under the the as- decrease statutes, simply battery penalty the the because in sault lucky- driver, latter Thus, case was more reckless severe. a enough gets escape caught, injuring will, if he someone fine; another, injures person suffer a small but who a while driving caught get exactly way, likely the same is more both to penalty. and suffer a more severe In both cases the conduct of the defendant is the same. Aside from the fact injured, that in the case the sum total found themselves by battery of someone assault and is difference in the crimes two is to penalties. in the having The courts taken it weigh efficiency penalties of the ascribed legislatures driving, the the have come to reckless they efficient, acting conclusion and, that are on assumption deterrent, penalty greater process that a more severe will act aas by simple penalty have increased the squeezing easily of gory and the case into the most accessible cate- battery. Although machinery creaks —assault groans, the courts are stoical in their insistence Policy the extra burden be carried. so demands. ^{[*] [*] [*]} that, . . connota- It is because of submitted its various tions, great part ‘intent’ lost such a what term have been has descriptive properties, opera- once arriving process no tion of pure logic, which should be injures to make a conviction for reckless a result is more than a penal policy problems which hides view squarely faced A courts. defendant driving possible ‘recklessly.’ someone It while is major get premises proper or minor stuff to battery, driving, assault and or injury. premises with intent to inflict But are not self-creative. A choice must made. a When court decides injury that a reckless driver intended to inflict there- and is guilty fore of assault and which carries jail, penalty of six months in when it found could have violating simple guilty driving statute him reckless saying: ordinance, it is in fact “ automobiles, opinion, class, ‘In our drivers of will severity punishment. react accordance with legislature specifically provided penalty has to cover which, opinion enough. our like this cases is not severe altogether too many There are accidents caused driving. penalty Increase to 6 months decreasing effect on have its the number will accidents. Therefore, guilty battery.’ defendant of assault and arriving intelligent process at results more “Such seemingly doing nothing finding than the one of but is, defendnat ‘intended’ to inflict the there-

247 Tulin, battery.” fore, guilty The Role of assault and 1057, 1048; Law, YALE L.J. Penalties in Criminal 37 (1928). 1059-60 legisla- criticism, pointed In addition to this we believe toward clearly ture was Indiana cases aware of the line of Commencing might which levied. such criticism 619, N.E. Ind. 98 with Luther holding adopted “fictionalized” this Court general negligence equivalent that criminal for is a functional statute, language disjunctive rea. In mens view “intentionally knowingly unlawfully,” i.e., we believe law implement Assembly fully case the General this desired Thus, aggravated it created offense assault. when the new through Hoffman, Appeals, Judge correctly stated Court regard requisite with to the for the law assault. granted court,

Transfer is the trial and the decision of Appeals’ opinion in the Court of reasons stated decision, is in all affirmed. matters C.J., Arterburn, J., Prentice,

Givan, concur; J., dissents DeBruler, opinion J., concurs.

Dissenting Opinion Emotionally, very be- difficult case is Prentice, J. (ap- apparent it cause is from the that the defendant record driving seriously injured pellant), his struck and drunken My feelings no inner are he a small child. received compassion than he I have How- more deserves. for him. no according ever, right judge I no appeal have his other than opinion my understanding applicable law, my majority opinion respects. error in two REQUISITE INTENT majority upon opinion State, (1918) relies Bleiweiss v. N.E. N.E. wherein this Court charge simple aon affirmed a conviction prose- appellant accidently evidence that struck cuting negligence automobile, witness with mere through showing but rather dis- intentional recklessness regard safety for the of others. in that case We held requisite criminal inferred to the offense could be from the intentional acts that dis- done under circumstances disregard. closed con- such of the defendant’s Affirmance requires doctrine, legal fiction, viction extend one us to step general only further to or mens and infer not the intent bodily “great rea specific but also the further intent to do injured harm” to the child. defining province of crimes in this state is the exclusive Legislature.

of the True, interpret the courts must the statutes doing and in legal so must in resort sometimes to fictions carry order legislative out the intent. Fictions have tradi- tionally been justice, concocted serve the ends but unfet- tered, they are inclined to wander into areas where their cause; observance and, defeat as rather than serve the Pennsylvania said in Co., Hammond v. Railroad “* * * 31 N.J. 156 A.2d should be contained the reason their invention.” prece-

Affirmance establishes a defendant’s conviction By consequences. dent em- for intolerable the same fiction ployed inferring therein, the crime of arson could be found specific intent to set a fire wilful act from wanton but smoking prohibited fire. in a resultant area and Since regulations prevention purpose is the most of fires prohibiting smoking places, public in certain no re- if fire sulted, specific nevertheless, could, intention fire to set a regulation be inferred from the wilful of the violation guilty attempted violator could be found arson. 10-401,

Under Burns Ind. Code 35-1-54-3 Burns § § 10-401a, 35-13-2-1, guilt necessarily predi- Ind. Code is not § death, cated a resultant or a is fiction, required. Thus, under the even if no one had had been injured there accident, been in the even if indeed defendant, which driving all, no accident at the reckless safety disregard clearly and in was wilful and wanton intent support an inference of others would injure been convicted kill the defendant could have felony assault with commit to or of of assault with intent intent to kill. in murder

The element of the same factor degree aggravated assault, except that as in second Therefore, injure. the other it is to kill and in killed, inferred injured application had the child guilty of fiction the defendant would have rendered equally degree murder, murder is the malice of second because Or, just chose, if we could inferable is the we as as intent. logically required premeditation infer murder in driving continuing degree first deliberate and thought permitted opportunity for time deliberate had after the inferred intent been conceived. agreed their young race automobiles

If to two men agreement at misdemeanor) roadway (a bymet and public a starting stopped police and agreed were the point but the commenced, they guilty of game, are it the before abandoned felony? Yet, I a conspiracy commit I believe not. if to a acknowledge fiction, I have would to the inferred follow if person possible, have a injury to some would been that an Therefore, consequence the race. had the probable, injury place, do such would race the intent to have been taken participation, felony the would from wilful inferable which, having plan The do that been to committed. have been felony fiction, have act would an overt such —and they are, thereby, consummation, having its towards been done guilty conspiracy. the foregoing, may it be seen that intentional or

From thing is voluntary of a criminal act far different commission produce particular criminal intention to result. from It is thing, act therefore, one infer an intent do the to doing thing it quite but infer another produce intention to specific consequences. The words applica- inferred intent doctrine fit situations. The both tion recklessly doctrine to find that an act done wantonly intentionally was done say but the law is regards such recklessness and as intolerable as wantonness equivalent. criminal intent necessary and therefore its is This justice therefore, cause of is, acceptable. The accomplish specific result, how- of an intention to existence ever, is inconsistent with and wanton conduct. If specific result, desires a he sets in motion the forces that will design deliberation, accomplish processes it with mental inapposite disregard. that are and wanton to recklessness Holding justice further otherwise does not the cause of but anomaly. creates intolerable

Following adoption opinion Ap Court of writing peals, Hunter majority Justice for the has distin guished Richardson, State (1917) case from Iowa v. People Hopper, 162 N.W. 69 Colo. P. 152. The distinction has been made to illustrate types there sup are two assault statutes —one designed posedly punish the wicked in heart and the other consequences accidents, notwithstanding to vindicate dire perpetrator’s heart pure. have been requires injury Indiana statute a serious as an essen- clear, tial element of the crime. That is even without majority’s explanation. clearly What not clear is how the expressed requisite to do the dispensed can with. That we have not, justi- done as much before me, doing again. fication for

Only five assault and cases have come before arising of accidents, this Court out automobile they and arose years span approximately the of twelve through from 1912 significant I it 1925, note progression. and think their State, The such Luther v. first of cases was accidently struck 619, There, appellant the Ind. N.E. only that bicyclist evidence with his There was automobile. overtaking the appellant was the vehicles while the collided bicyclist This Court at no that he was fault. evidence any evidence the of reversed the conviction because of absence however, part process, the appellant. of intent on the In of from could circumstances stated that intent be inferred legitimately it, permitting under intentional acts done from safety showing disregard circumstances a reckless for willingness others of and a inflict directly and commission an of unlawful act which leads naturally injury. to the N.E. State, found Schneider at v. State, authority in Luther was decided on of dicta V.

supra, battery was af simple the conviction question fact firmed with a statement was best, in jury statement, be determined careless —a “* * * appel only view of the facts related which were against person injured ran lant an automobile * * party supra, Bleiweiss 1918. There was decided speed accident the excessive was caused principal residential automobile over a street in a section Indianapolis. law, of Luther became the we dicta observed, “There is in this case which tends show evidence appellant operating machine was violation * * * 779, 14, disregard p. Acts awith safety required giving others.” The cited for statute timely signal bell, upon ap with a horn or other device proaching intersecting highway, curve or corner where operator’s penalty provided view is obstructed. No The criminal violation this section. inferred person intends probable the fiction that the natural and consequences of his unlawful reckless acts. Singer State, 397,

In (1923) 864, the N.E. 194 Ind. v. circumstances were similar There was to those of Bleiweiss. operating evidence appellant that the at his automobile was speed existing which was excessive under conditions. the We there held that the trial court that the could have found appellant disregard safety acted with the of disregard others and that from such reckless the court was justified finding that his was an unlawful act done with negligence. intent and was not mere distinguished Radley State, we the v. facts in supra. Bleiweiss, 150 N.E. those The from overtaking automobile, after car which street slowing stop pick was up passenger, struck order to passenger the stepped would be curb into as she the the convicted, street the to board car. The court trial but saying we only reversed that the evidence a lack disclosed ordinary support care which could an not inference unlawful intent. foregoing case law of Indiana is reflective of American

case generally upon although law subject, the states some have apply refused to implied intent or inferred intent charge support fiction to simple assault and arising negligence. greater out of The reluctance has even been charge when statutory assault, awas form of and at least although two courts have held the criminal intent to commit an act unlawful could be inferred from doing intentional negli- of an act that grossly is “wanton and gent,” (People Hopper, supra) “driving v. or from in such reckless, imprudent utterly manner as to be indifferent safety others,” (State Richardson, supra), v. intent to do could not be so inferred. recognized

It will the cases above reviewed arose emergence with problem. of a new social The advent brought of the automobile injuries it an inherent risk of persons property previously and to encountered against legal which no combative yet mechanism had inferred designed. apparent application It accom- court’s consequence fiction was a natural concept in- problem. Doubtlessly modation manslaughter, aspects of fluenced a consideration of the although supra, acknowledged State, this is in Luther v. arising out an appears manslaughter that the case first appear until automobile accident did not in this Court 943. Such Smith 115 N.E. 186 Ind. manslaughter has however, misplaced, influence because assault, required requisite either never wording statute, which was or under our common law common law. taken verbatim relating provided the first to The Acts statutes pro- part the operation most of motor vehicles. For the safe driving” and, scriptions except “drunk which for were exceeding fifty run” dollars “hit and provided not and fine fines felony, penalties limited were to was made a 13, exceeding twenty-five 1916, ch. Acts not dollars. §§ 14,15,16 and 19. first, enacted, driving” was statute “reckless operate upon a it unlawful to a motor vehicle became dangerous highway so

public “in a reckless or manner person.” A endanger life, any property as to limb twenty-five nor more than five fine of not less than dollars imprisonment for to which could added hundred dollars year provided. penalty not more This than one was was battery, provided it is that for assault and thus excess of battery arising surprising prosecution for Manslaughter charges driving reckless fell into disuse. out of however, longer necessary prevalent, more as no became voluntary manslaughter charge inferentially prove to by requisite evidence of wilful and dis reckless Roby regard. 215 Ind. N.E.2d Legislature to the need awareness for laws The driving by was next to safe illustrated enactment conducive 48, 52, reckless Burns homicide statute. Acts ch. § 47-2001, Experience demonstrated Code 9-4-1-54. had § that, except impose cases, juries in extreme were reluctant provided penalty manslaughter severe for an for accidental death negligent operation caused automobile. require same driving act re-defined the offense reckless disregard” operation “reckless opposed reck- as to an “in a dangerous less or both maximum manner” reduced imprisonment fine Chapter and the maximum therefor. encompass driving did not alone homicide and reckless reckless comprehensive highway but was a for enactment of laws safety. amended, time, It has since been from time changing appear require. Conspicuous its conditions absence, however, injury” is a provision, are “reckless and we following drawn passage Richardson, to the from State v. * * supra. may *, Legislature “We could assume through any injury declare if short of death be inflicted ** operation vehicle, *, the reckless a motor without intent, reference it shall constitute the crime of assault bodily great with intent upon to inflict who one injured. It has not declared. so We so assume the Legislature prescribing punishment enact a could statute greater driving injure than fixed if such highway. is, yet, There as no such statute.” specific of covering driving view the statutes reckless and driving homicide and other statutes numerous proscribing that public which creates hazards our road- ways, Legislature’s I do assume that the failure create to injury” oversight during a crime of “reckless has been mere 1939; years all of the since nor Ido believe of that the ends justice require legislate judicially by us to of extension legal By doing, majority fiction. might so the have well problems created more solve, par- than we can and this is ticularly true in the policy making view of settled of state this judge weight jury the the exclusive of the evidence and reasonable inferences to be drawn therefrom. of upon the necessary correctness pass for It is not us simple of upheld early convictions herein the cases cited The intent doctrine. battery upon the inferred and assault legislative light later of procedure into disuse in has fallen The unlikely concern. further to cause enactments, cases, the area however, into the of those extension doctrine of is, specific result requiring intention effect a an of crimes dangerous into incursion my opinion, in an unwarranted Legislature. province the the of exclusive AFFIDAVIT OF CHARGING SUFFICIENCY of majority, by adoption of the Court Upon issue, trial of Appeal’s opinion affirmed the court’s denial charging The quash affidavit. motion defendant’s opinion quoted from Blackburn 686, 690, of which is correct statement

291 N.E.2d charging specificity for indictments affidavits. standards motion, argued upon case posture In the which this affirmed, however, met. those standards were not tried majority opinion upon quash motion issue and majority opinion upon sufficiency issue evidence aggravated inapposite. are Had the case been a traditional agree case, I would the affidavit assault sufficient. case, however, of this it was In the context insufficient. Accepting, purposes argument, the offense can be committed the mere commission injury, resultant unlawful act and serious i.e. the injure requisite, is not then the offense is essen- manslaughter involuntary tially (an same unlawful resulting death) act an accidental and reckless homicide disregard resulting (reckless death) subjected and must be regard pleading certainty. rules to the same charged language statute, in the crimes Some may not. others “Ordinarily description language of an offense in the sufficient, if the the statute statute defines an an specifically offense and states it what constitute acts may language indictment or in statute affidavit of the * * * show that where statute has violated. But general specify statute what uses terms and does acts forbidden, constitute shall it not sufficient offense is merely must state language statute, pleader to use the of but the particular facts the case.” Ewbanks (Symmes Ed.) Crim. Law cases there cited. manslaughter “Involuntary belong to does not that class may charged language crimes that be in the of the statute. When the sion the affidavit or indictment is based commis- negligent, act which is unlawful it because allegations allege must it facts which is made appear that wantonly the act was done or with reckless disregard safety others, for the it further must appear proximate that such act cause of the death.” Beckman, State (1941) v. p. 219 Ind. 176 at

N.E.2d homicide, above, “Reckless under the statute referred to involuntary manslaughter is to belong a form of and doesn’t charged language the class crimes alleged of the appear statute. Facts must be which make it disregard safety that the death was due to reckless Rogers others.” p. Ind. 709 88 N.E.2d 755. battery Assault and assault and were crimes at common law adopted by and were statute. There was law no common aggravated crime of Having meaning assault. an established therefore, law, at common the crimes of assault charged language could be in the of the statute Further, regard without elaboration. if statutory we crime of assault as but a traditional assault and battery with the great additional element bodily resultant harm, appears charged it it language could also be in the statute, But, without more. if the statute is encom- great pass bodily resulting harm not from intent but negligent conduct that unlawful because it is or wilful wanton, follows such conduct would have alleged required particularity with the same charges involuntary manslaughter and reckless homicide. arguments, point

At oral disposed raised and by a brief comment to that defendant have the effect could filed a motion need specific to make if more he felt himself particulars. very The that is no such law clear there thing specific plead- as a motion to law make more in criminal ing uncertainty that reached indefiniteness only by quash. a motion to ground

The statutory quash fourth that for a motion to the indictment or affidavit does state the offense with certainty. sufficient Burns 9-1129.1 §

A any motion to question make more does not raise v. practice. under State, (1919) our criminal Hinshaw 188 447, 455, 458; State, Ind. (1925) 124 N.E. Sunderman 197 v. Watt Ind. 705, (1968) State, N.E. 829. See also Ind. N.E.2d 471. also It particu has that a decided motion for a bill of inappropriate lars is under such circumstances that necessity ample charge for quash such bill is reason to uncertainty. Sherrick v. 167 Ind. N.E. 193. opinion majority

The completely. point misses this It acknowledges that the proximately unlawful act or acts which alleged involuntary caused a death must with reference to manslaughter recognize or reckless homicide but fails similarity aggravated of those crimes the crime of assault permitted encompass injury. when distinguish- reckless ing cases, majority holds, contrast, gist “In * * * offense is the * * great wilful, bodily unlawful infliction harm The *. here at issue affidavit stated these elements of the offense certainty.” plainly certainty and with The required is not simply that the defendant be made aware of the crime with charged. Rather, requires ishe it that he be advised charged. why quoted he is so The last statement Repealed Acts, 1973, present law, Pub. L. No. 325 5. For see §35-3.1-1-4(9) (Burns 1975). Code logic equal

majority opinion applied could be homicide, manslaughter involuntary or reckless offenses alleging foregoing an indictment from the is clear but person in involuntarily killed a named that the defendant sufficient would unlawful act not be commission some charge manslaughter, alleging affidavit disregard for the reckless drove a vehicle with defendant safety thereby caused the death of a named of others and charge aas homicide person not be sufficient would allegations plainly notwithstanding such state the ele- offenses. ments of the judgment of the trial court reversed. should be

DeBruler, J., concurs. Reported at 342 N.E.2d 622.

Note. — Leroy Rufer State Indiana.

Bruce Rehearing Filed denied March [No. 775S160. April 27, 1976.]

Case Details

Case Name: Defries v. State

Court Name: Indiana Supreme Court

Date Published: Feb 26, 1976

Citation: 342 N.E.2d 622

Docket Number: 975S223

Court Abbreviation: Ind.