# Brewer v. State > Indiana Supreme Court · November 14, 1969 · 253 Ind. 154 URL: https://www.frixlaw.com/law-library/cases/9528342 ## Case - **Full name:** Brewer v. State of Indiana - **Court:** Indiana Supreme Court - **Decided:** November 14, 1969 - **Citations:** 253 Ind. 154; 252 N.E.2d 429; 1969 Ind. LEXIS 299 - **Precedential status:** Published - **Opinion:** Dissent by Jackson - **Judges:** Hunter, Debruler, Jackson - **Cited by:** 35 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9528342 ## Opinion text Dissenting Opinion Jackson, J. I am unable to concur in the majority opinion and dissent thereto. Before discussing the legal propositions raised by the motion for new trial and the assignment of errors in the case at bar I deem it necessary to summarize a facet of this case. In the case at bar the appellant is the product of a broken home, it seems probable from the record herein that in addition to problems confronting him as a result of the broken home and subsequent living conditions appellant suffers some congenital impairment or incompetence; the record discloses that the father, with whom appellant lived a large part of his life, had mental problems stemming from military service in World War II, during which service he was captured and incarcerated in a German prison camp, and was thereafter confined in the V. A. Hospital at Marion, Indiana, from 1960 to 1965; during the time appellant lived with his father the father drank to excess and beat and mistreated appellant to the point where appellant was taken from the father’s home and sent to live with various and sundry relatives; the record further discloses that in each case such relative after a time passed appellant to another realtive on account of appellant’s refusal or failure to conform to the norms of society. The *170 record also discloses apparent difficulty by appellant in school. I refer to the above, record not for the purpose of arousing sympathy for appellant or providing extenuating circumstances to ameliorate punishment, but for the express purpose of pointing out that warning signals were only too apparent to the public that here was a youngster headed for grave trouble unless given help by society. So far as disclosed by the record, society did nothing to prevent appellant’s drift to his present position. Apparently the imminent end, of what appears from the transcript to have been of one of the few pleasant interludes in his life, terminated in the death of his benefactor. As a result of which we are now confronted with the spectacle of a fourteen year old child, having stood trial on and been convicted of a charge of murder in the first degree, appealing his conviction and sentence of imprisonment for the balance of his life in the Indiana State Prison. For the purpose of this dissent I deem it sufficient to discuss only specification No. 2 of appellant’s Motion for a New Trial which reads as follows: “2. Error of law occurring at the trial as follows: The Court erred in giving State’s tendered instruction No. 2 to the jury, the giving of which was duly objected to by the defendant within the proper time by filing written objection to said instruction after the Court had indicated the instruction would be given to the jury.” The written objections to the giving of State’s Instruction No. 2 read as follows: “2. The defendant objects to the giving of State’s instruction No. 2 on the grounds that in the last sentence of said instruction it states that ‘if the will of such person is simply overbourne by ungoverned passion or temper and is not the result of a diseased mind then criminal responsibility results from his criminal act’ while in State’s instruction No. 3 which is to be given the jury the offense of involuntary manslaughter is described by quoting the statute which shows that manslaughter can be the verdict if such killing is done in a ‘sudden heat.’ The two instructions are therefore very confusing to the jury and by reason of same would be erroneous and prejudicial to the defendant.” *171 State’s Instruction No. 2 reads as follows: “In determining the effect of irresistible impulse, a person that has sufficient mental capacity to know right from wrong and be able to understand the nature and consequence of his act, whose will power is not so impaired by a diseased mind so that he can resist an impulse to kill another person, there is not mental unsoundness of mind in the eyes of the law. In other words, if the will of such person is simply overbourne by ungoverned passion or temper and is not the result of a diseased mind then criminal responsibility results from his criminal act.” The above instruction purportedly was given pursuant to the approval of the instruction given in Warren v. State (1963), 243 Ind. 508, 515 , 188 N. E. 2d 108 . The cited case, Warren v. State, supra, holds as follows: “In determining the effect of irresistible impulse it is the settled law of this state that a person may have sufficient mental capacity to know right from wrong and be able to understand the nature and consequences of his act and yet not be responsible for his actions, if his will power is so impaired by a diseased mind that he cannot resist an impulse to commit the criminal act. In other words, if the lack of will power is the result of a diseased state of mind, there is mental unsoundness in the eyes of the law; but if the will is simply overbourne by ungoverned passion, there may be criminal responsibility. See: Plake v. The State (1890), 121 Ind. 433, 435 , 23 N. E. 273 , 16 Am. St. Rep. 408 , Flowers v. State, supra.” (Emphasis supplied.) Clearly, State’s Instruction No. 2 is erroneous and the giving of the same over defendant’s written objection constituted reversible error and was prejudicial to the defendant. For the error of law complained of, this cause should be reversed and remanded to the trial court with instructions to grant appellant’s Motion for a New Trial. Other questions presented need not be and are not here discussed or considered in view of my determination of the question relative to the aforementioned instruction. NOTE. — Reported in 252 N. E. 2d 429 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9528342. Public record. Not legal advice.