*1 discharge prosecu- bar to further that the case also states permit charge, that to hold otherwise “would tion on the guarantee stultify firm 12 of Article the State § therefore, We, hold when of Indiana.” the Constitution discharged properly on Count court the trial discharge equally indictment, effective as any lesser included offense. failing therefore, trial court erred in hold the
We, discharge motion to to Count appellant’s sustain is, therefore, reversed, The court indictment. proceedings further not inconsistent remanded for
cause is opinion. with this
Arterburn, DeBruler, JJ., C.J., Prentice, Hunter and concur. Note.—Reported in 287 N. 2d 334. Preston of Indiana. A. September 27, Filed
[No. 1972.] 971S283. *2 Ham, Jr., appellant. Huntington, Wendell L. for Attorney General, Schaefеr, Theodore L. Sendak, Michael Attorney Deputy General, appellee. for appeal by an from J. This is A. Preston Hunter, judgment in the Wabash Circuit Court.* charged by Indecency. аffidavit with two counts of Public Upon conviction, he was fined in the sum of and sentenced $100 (6) Appellant’s for Indiana State Farm six months. Motion appeal to Correct Errors was fоl overruled and this lowed. appeal
The issues for on review are follows: appellant properly being 1. Was the identified at trial as alleged who committed offеnse? voluntary charge 2. Is intoxication a valid defense to a public indecency? 3. Was the admission in evidence of certain describing physical the mental and after-еffects suffered alleged three minor as a result females prejudi- crime cial error? January 24, 1971,
On one Richard Butzin drove to Village Shopping Wabash, Indiana, Wabash Center see employed parked his wife there. who Mr. Butzin his car in front of the store where his wife worked and went inside. daughters, ages left eight, He three five, seven and in the store, car. While insidе Butzin looked window out the * reassigned August 14,1972. This case was this office on standing appellant the side of noticed the he where daughters. three Butzin contained his When Mr. car which aрpellant exposed had himself and further observed masturbating daughters, outside in front of his he ran apprehended him. and waiting police appellant made arrive, for the
While following you guys prove it?”; “You’d “Can statements: appellant prove he better able to it.” The also stated that again.” appellant “wouldn’t do it Witnesses testified that the appeared smelled of alcohol he to be intoxicated. arrived, police When the was arrested day pleaded charge guilty public the next he atо intoxi- days later, cation. A few he was re-arrested with public indecency.
Appellant’s first contention is that the State have failed to identify per- the witnesses at trial as sоn who committed the is true offense. It that no witness *3 pointed appellant the to trial said, at and “that is man.” the However, at least three witnesses the referred to “defendant” shopping as the at the center who committed question crime. A the similar was in State v. Schroeppel (1959), 684, 240 185, 187, Ind. E. 683, 162 N. 2d where we stated: “The evidence further shows that at Fred various times (defendant Schroeppel, appellee below), the referred was may during to ‘the defendant’ trial. ... the We assume the defendant was in since court presence requires during and the law his point. on that It well a
no issue is made is settled that may by name.” identified defendant be Schroeppel, conclude the reasons stated in we that For suffiсiently appellant identified and that no error occurred was regard this matter. appellant It contended that was too intoxicated to is next necessary intent commit the crime. Almost form the all appeared appellant either that of the evidence indicates 356 least, extent, at of
intoxicated or to some under the influence that alcohol. he of testified had no recollection Hall, wit- incident Donald whatsoever. who was called as appellant, appellant ness fоr the testified he and had that liquor prior immediately amount consumed a considerable incident, that, opinion, appellant to the seriously witnesses, however, that intoxicated. Other testified although may appellant drinking, have been not it did appear he so that unable to them that intoxicated he was comprehend Furthermore, the nаture of his actions. evidence indicates that the able to understand questions respond put which him Butzin were at the scene of the crime. general rule, voluntary
As a
intoxicаtion is
defense
not a
charge. See,
to a criminal
Daniels
(1971),
v. State
Ind.
257
702;
376, 274
E.
(1957),
N.
2d
Dobbs v. State
Ind.
237
119,
exception
thing.” opinion We are of the there is substantial evidence probative finding support value sufficient to jury actions, intended his apрeal. such a determination will be disturbed on *4 argument Appellant’s prejudicial final is that error it was parents testify permit to the the children of three minor to regard apрellant’s in the effect the act three to had on the Appellant children. on our decision in relies Rowe v. (1968), 547, 576, posi- support Ind. 237 N. E. 2d to objection, Rowe, show, the State allowed to over tion. In surviving that a murder left and two children victim a wife recognized regard such issue, him. In that that when to we case, introduc- material evidence is not relevant tо the the or testimony However, issue prejudicial. tion of such is in Rowe far one us in is different from the before pursuant case. to IC Eepl.]), (Ind. which 35-1-83-3, 10-2801 Ann. Stat. [1956 § provides:
understanding vided, is fined not lеss hundred dollars ment in the an indecent annoyed thereby, language any place “Whoever, guilty presence That whenever the indecent or words of where exposure county jail public indecency, and, than of a child [$100], there or comprehend over uses or utters five of his are other not fourteen to which presence [$5] or exсeeding person children dollars persons or [14J nature any may in a on exposure hearing six of obscene nor conviction, years be added public place, sufficient to be [6] more than of of months; consequences or any offended age committed imprison- licentious age shall be female, makes or Pro- one or in indecеnt which tend imprisonment year, of children sex abuse of (our emphasis) sexual attack who is over to which are under exposure such for a may child excite the or is cоmmitted sexual abuse and whenever such child or period age or added age children, fear of of time a fine years years sexual not not under punishment to exceеd attack or exceed one of the whenever circumstances $500.00.” opposite may sexual such [1] be reading appears of the it child’s statute From close сonsequences comprehend understanding at sexual tendency excite abuse and the act’s tack or fear are elements crime. attack abuse of the of sexual or example, error, for evidence to admit Thus is was immediately vomited after that one the children fact apprehended by Similarly, it Butzin. after admit which indicated wаs not error night- frequently children suffered occurred incident *5 go Sunday mares and were afraid School themselves. This tends to establish material elements of properly crime it and was admitted in evidence. foregoing reasons, all judgment
For court is affirmed.
Judgment affirmed. C.J.,
Arterburn, Prentice, concur; JJ., DeBruler, Givan J., Opinion. dissents with
Dissenting Opinion DeBruler, grounds J. I dissent on the lack identification of the required in the a State’s case directed verdict in his behalf.
It process require seems to me that basic due would linking when the evidence alleged criminal to the eye-witness acts is an identification in-court identification pointing should person consist of out which com- the court mitted acts. It is a material element case of the State’s prоve person that the person who committed the crime is the presently Having supposed eye-witness on trial. testify a a name or refer to the title “defendant” does nоt tend prove merely this element but tends to criminal establish that acts person may may were committed who or not be the designed defendant. are Trials test truth or allegations falsity against made custody against a name in the abstract. A definite link estab- must be person actually lished between the on trial and the crime. simply It is not link sufficient to the crime and a name. Note.—Reported in 287 N. 2d 347. Crump State of Indiana. September 27, 471S103. Filed
[No. 1972.]