The opinion
PRENTICE, Justice,
dissenting.
I dissent to issue number IV, which is a challenge to the sufficiency of the evidence of Defendant’s sanity at the time the criminal acts were committed, for the same reasons and upon the same authorities set forth in my dissenting opinion in Lynn v. State, (1979) Ind., 392 N.E.2d 449, 453-456 . The cases are very similar.
As stated in my Lynn dissent, the criminal acts of the defendant were bizarre, but this does not preclude his having been sane under the Hill test. But neither does the commission of criminal acts, standing alone, evidence sanity.
The State amply proved that the defendant committed the criminal acts charged and rested. The defendant did not refute the evidence of such acts but rested, without taking the stand, after showing his pri- or commitments to Beatty Hospital for the insane and that he was an epileptic and receiving medication as such, under the direction of a Beatty staff doctor.
Thereafter, the two court appointed psychiatrists testified at length. Their testimony revealed that the defendant had a long history of emotional instability. As a boy, he had been hospitalized in Illinois in a state institution for epilepsy and similar organic illnesses, because he was confused and had a memory failure. He had also had significant head injuries on two separate occasions.
In December of 1965, at age 16, Defendant was committed to Norman Beatty Hospital, being under indictment for burglary, rape and inflicting injuries in the commission of a robbery and having been found to be of insufficient comprehension to stand trial. He was released to the court from Beatty Hospital in October of 1968, entered a guilty plea to reduced charges and received a two year probated sentence. During the aforementioned incarceration at Beatty Hospital, in 1965, the defendant was tested by electroencephalogram which revealed minimal abnormality, and in 1966 he received thirty electro shock treatments, each of which would have produced some brain damage.
Following his release in 1968, up until the time that he was arrested upon the pending charges, the defendant had also ingested excessive amounts of soft drugs and alcohol.
Following the filing of the charges of which he stands convicted, the defendant was again found to be incompetent to stand trial and committed to Beatty Hospital. He was released to stand trial on January 28, 1975.
The court appointed psychiatrists testified that in their opinions the defendant was, at the time of the crimes, suffering from a mental defect, in consequences of which he was unable to conform his conduct to the requirements of the law. Their opinions were based upon the foregoing related information and their examinations and observations of the defendant.
The evidence relied upon by the State and related in the majority opinion reflects nothing more nor less than conduct which might reasonably be attributed to either a sane or insane person. The majority rests its decision upon indicators that, in my opinion are not substantial. If the burden were upon the defendant to prove his insanity, I would hold that the evidence did not require a reversal. But the burden is upon the State. There is no inconsistency in rational or normal acts or attributes emanating from one who is insane — either in the ordinary sense or under the Hill test. The Hill criteria stops far short of idiocy or lunacy. It is my opinion that it cannot be said, with reasonableness, that the evidence was sufficient to sustain the State’s burden of proving that the defendant was sane beyond a reasonable doubt. Accordingly, I would remand the cause with instructions to enter a verdict of not guilty, by reason of insanity, and to proceed in accordance with the provisions of Ind.Code § 35-5-2-5, as was urged by my dissent in Lynn v. State, supra.