*1 Jackson, J., result; concurs
Bobbitt, J.,
opinion.
dissents without
Reported in
Bays v. of Indiana. 29,739. Rehearing Filed [No. June denied October 1959.] *4 Brazil, Craig, appellant. C. of for Bernard Steers, Attorney Wall, K. Edwin Merl M. General and Attorney General, appellee. for Assistant charged by Appellant indictment was Achor, C. J. Larceny, (2) (1) Grand First in three counts Banditry. Appellant Burglary (3) Degree Auto and guilty to each count plea of of the not indict- entered alibi. of filed notice ment and suppress filed motion to and
Aрpellant then ex- hearing, evidence. After the motion over- clude Appellant petition filed a verified then for ruled. sanity. appointed hearing The court two doctors hearing thereon, appellant the court found after guilty found Appellant was tried and on each sane. accordingly, counts sentenced of said three concurrently. served sentence to be then, by choice, Appellant trial counsel his sea- sonably trial, filed a motion for a new which was only following contained overruled. motion grounds: (1) jury verdict of two is law; contrary (2) jury the verdict evidence. sustained sufficient present pauper Thereafter, appointed counsel was prosecuting purpose appeal. assignment appellant In of errors his asserts that following: committed error in each court overruling (1) supprеss evidence; in motion to admitting testimony (2) in in evidence of the search resulting search; (3) and the from the in evidence failing preliminary instruct on the issues its court; required as Rule l-7a of this instructions (4) failing by preliminary instruction No. 1 its insanity; (5) by on the to instruct issue alibi limiting preliminary 1 in instruction No. issues its plea guilty thereto; of not to the affidavit and the giving jury (6) in at close all the to the evi- omitting by1 the issues of dence its instruction No. jury insanity; (7) alibi instruction *5 accessory fact; (8) No. on before the after accessory instruction No. on fact, before the in failing jury to furnish to the a form of verdict touch- ing accessory instructing before the fact or them that they prepare verdict; could their (9) pro- own in nouncing judgment on jury the verdict of the affidavit; (10) count No. pronouncing judgment jury on the verdict of the on count No. 3 affidavit; (11) overruling of the defendent’s motion trial; (12) for a new Bays that the defendant was not adequately defended in the trial in violation of Art. of the Constitution §13 of Indiana and the Four- teenth Amendment to the Constitution of the United States.
Specifications inclusive, 1 to are proper separate assignments, assigned but should have been
as causes in a motion They for a new trial. present question therefore no for consideration of this court and are fact, waived. In under only Rule 2-6 of assignments this court the of error present any question (11) overruling are (12) motion for question new trial and adequacy of counsel. provides:
Rule 2-6 “If, filed, court, in the trial a motion for a new trial is ever each upon, error relied however and when- arising up filing to the time of the of said motion, may separately specified be therein as a ground therefor, assignment and an of error the effect that overruling trial court erred in said motion shall be sufficient to raise said as- serted appeal. error on Errors which now must assigned independently be may still be so as- signed if [Adopted desired.” April 17, 1940. Ef- September 2, fective 1940. Amended and effective November 1949.] Prior adoption to the of the above rule it was assign many errors independently permissible filing of a preceded the proceeding which However, rule as for trial. new motion proceеdings where requires that, changed in all is con new trial for and a motion a trial had ground specified as a templated, errors shall such requiring that such The chief reason for new trial. for new in a motion forth as causes errors be set *6 review judge a chance to trial have is that the trial the subject complained and correct of matter the trial by granting new error, any, the motion for if Hamilton’s, Flanagan, and prior аppeal. to Wiltrout etc., §1814, pp. by the motion for consider matters raised
We first argue sufficiency Appellant the of new trial. does Therefore, the evidence to the sustain the conviction. question presented and sole reserved the motion contrary here for review is this: the decision Was ? law Appellant con- here contends that the verdict trary to counts 2 and 3 of for the reason law that the indiсtment do not facts which constitute state offénse, a criminal and therefore the verdict guilty purported appellant crime of which find the upon charges, contrary to law. based such therefore examine the affidavit to determine We whether criminal offenses counts and constituted under the laws of this state. affidavit three counts follows: is as county, Bays “. . on . that of said Otho late A.D., day January year
the 5th of of . Cоunty aforesaid, at and" and State did then unlawfully feloniously there Count One: carry away personal' of take, steal Butterman, portable property of one Aleta two radios, rifles, gauge two a .410 Winchester shot-
gun, camera, ulars, projector, a Revere camera a Poleroid pistol, a' .38 calibre and a set binoc- more, all the total value of $300.00 Count Two: break and enter residence of one Aleta Butterman, being place same of human habi-
tation, with felony the intent to commit the larceny therein, Three: Count break and residence enter of one Aleta Butterman, being place same of human habi-
tation, with the intent to commit larceny having therein, prem- or near the ises an automobile the use of which he made escape, being contrary his the same to the form cases; provided suсh Statute made and against peace dignity of the State of Indiana.” by appellant, As stated neither count 2 or 3 state constituting facts larceny, crime of allegedly appellant had “intent sup commit.” In port proposition of his specif affidavit must allege ically such facts in crime, order to constitute a appellant Pope State; relies the case of *7 v. Lewis (1949), 197, 200, 887; v. 227 Ind. 84 E.N. 2d State (1923), 477, 478, Borders v. State 193 Ind. 141 E.N. 50. contrоlling
We therefore consider the effect of said cases presented. the issues here Pope case, In the
supra, charge this court a held that in of auto banditry larceny in allegedly a mobile committed, any allegation a total absence of regarding property charge the value of the made subject statutory to judgm motion in of arrest ent.1 further held We that in defect the af fidavit was not cured the evidence. Likewise in 9-2001, Repl., p. 1. Section Burns’ 1956 257. supra, held- State, court v.
the case Borders charged with un- the accused an affidavit which intoxicating liquor, did not possession of lawful possession of mere charge since a criminal offense the statute. under intoxicating liquor was not a crime that, occasions on numerous This court has stated facts con material aver if an fails to indictment charged, attempted stituting to be offense sus judgment be should in a motion arrest Ind. (1913), 179 tained. Woodsmall v. State 562, Ind. (1914), 181 130; E. Boos N. v. State Ind. (1926), 197 117; 105 N. E. Shock v. Ind. Crumley 827; E.
151 N. E.N. however, quite different In this case the issue was committed, neither felony in not that the intended was judgment quash to arrest was motion question to These circumstances reduce the filed. in this of the affidavit Did counts 2 and 3 this: charge any conviction or was the case offenses whatever nullity? appellee Upon this issue аsserts thereon a based (subject possibly to are that counts and 3 sufficient indefiniteness) quash the offenses motion for state argues charged. support position of this the state In gist charged burglary 2 is of the offense count that breaking entering, intent —the unlawful being felony merely the ulterior commit a motive. it is Therefore the state reasons that sufficient preparation of the defendant information his against proteсtion jeop and for his double defense specifically alleged, ardy acts his unlawful allegation general regarding parti that a intended, committed, is sufficient. cular but gist count 3 The state further asserts that allegation appellant same, additional *8 46
had
nearby
an automobile
escaped
which he
or in
escape.
tended to
In such instances the law is clear that
it
necessary
allege
was not
to
thе kind or
value
the
goods intended to
(1949),
be stolen. Suter v. State
658,
648,
Ind.
386; Taylor, Bryant
88 N. E. 2d
v. State
(1956),
129,
126,
Ind.
297;
E. 2d
N.
Bloch v.
(1903),
276,
State
161 Ind.
Whether or not it was other facts regarding goods intended to be stolen has not here- adjudicated tofore general been in this state. The rule subject has been stated as follows: right “The constitutional of the accused to in be formed of nature and cause accusation against requires every him material fact essential element of the offense be charged precision certainty in the [Brockway indictment information. (1923), 88, 192 Ind. 138 N. E. 26 A. L. R. right He has a substantive 1338.] be informed simple, the indictment or information in under language charged standable crime he is constituting crime, and the acts in sufficient prepare detail to enable him to his defense and protected jeopardy. be event double [Rob (1953), 396, 12 861; inson v. Kain v. 232 Ind. State N. E. 2d 234 Ind. 123 N. E. 2d E. 2d 125 N. and to define the issues so 436] that thе court will able be to determine what evi admissible, pronounce judgment. dence is and to [Brockway supra.]" State, italics.) (Our v. Procedure, §1762, p. Criminal Law Wharton’s charging burglary “In a criminal must intent alleged. established, however, The rule be is well though burglary that even and statu housebreaking tory intent, as defined law, simply felony, to commit a fis it not sufficient in the indictment to follow general words, felony particular these but specified. allegation must intended be not, however, intended need ulterior be fully specifically set out as as would re- *9 acutal commis- for the quired in an indictment ordinarily felony. to sufficient It the sion by generally, al- as offense intended state the leging larceny, steal, crime of commit the intent to an ‘felony’ ais rape, The word or arson. high distinguish generic crimes, employed certain term robbery, larceny, murder, from and as as misdemeanоrs. offenses known other minor has that the accused broken The averment dwelling purpose of com- house for the entered a mitting the to commit.” 9 Am. wholly apprise him of felony a fails specific claimed he intended offense which it is Jur., Burglary, §46, p. 262. necessary to conclude therefore that while it is We allege charge burglary particularity the with gist offense acts which are the of the unlawful charged, necessаry affidavit it is not ulteriorly felony state all the elements of the intended, necessary if defendant as would be charged Although felony. particular an were burglary may objectionable for in indictment definiteness, charge an if it it is sufficient to offense charged particularity states acts the unlawful designates particular ac further which the cused intended to commit. Counts 2 and 3 of the indict requirement. ment conformed to this appellant’s Next consider contention that he we was trial, contemplated by adequately defended as Art. of the Constitution of Indiana and the Four- §13 teenth Amendment to the Constitution of the United support appellant In of this contention States. cites and following particulars relies in which he asserts adequately him: counsel failed to defend 1. Counsel for the defendant did not file a motion judgment pronounced 2 and tо arrest counts affidavit. 3 of the hearing suppress
2. After on the motion to by unlawful evidence obtained arrest and search and seizure, object counsel for the defendant did not to the unlawfully of the so introduction evidence obtained. objection made S. No was defendant’s counsel to giving preliminary court’s instruction No. defining whereby issues, the defense of ex- alibi was during hearing cluded the entire evidence, comрlete did such counsel not tender more instruction. general court 4. The its instruction No. 1 re- peated (without same instruction reference to the alibi) objection issue of and no made defend- instruction, counsel to the ant’s no *10 complete more instruction was tendered. general
5. in its When court instruction at the gave an alibi, close of case instruction on there request by was defendant, no the counsel for the for jury the court incomplete from the withdraw misleading and еrroneous and instructions. timely objected
6. for Counsel the defendant giving accessory 22 court’s instruction No. on fact, objection before lost the but benefit such by failing assign its as reason new trial.
We will consider the “failures” of counsel in the order above enumerated order to determine whether by appellant reason of such failures of counsel was denied a fair trial. Although
One: 2 the counts and 3 of the affidavit may subject quash have been to a motion to for indefi
niteness, as have discussed, we heretofore charge affidavit was sufficient to the offenses with appellant Significantly ap which convicted. pellant does not contend that because the indefinite charge prejudiced preparing ness of he was his
49 having by reason of prejudice shown been defense. No charge tried, “inade he was which the fоrm of the any to him quacy of counsel” is available because regard to the form of such of counsel inaction 45, 48, charge. Carraway (1956), 236 Ind. 138 v. State 299; (1959), 271, 239 Ind. v. State E. 2d Groover N. 307, E. 2d
N. Appellant asserts that counsel failed to Second: permitted appellant, in that he adequately represent he contends were ob certain exhibits seizure, through illegal an search tained objection. admitted in evidence without to be arresting had reason to believe officers defendant, therefore committed had been necessary.2 Johns v. arrest was not for his a warrant 552; 464, 466, E. 2d 134 N. (1956), 235 Ind. State 214, 225, (1953), E. 2d 232 Ind. N. v. Sisk 60, 838, Ct. 627, 74 S. certiorari denied U. S. pursuant 360, to a law search was made L. Ed. This of the owner arrest and the consent ful premises exhibits were occupant in which the would objection appellant’s counsel An found. unavailing. Ind. have been Dafoff 668; Speybroeck v. E. E. 154 N. 153 N. *11 person may a a not arrest “An officer without warrant 2. offense, merely though suspicion even he has committed an on a that felony. However, suspected an arrest offense be a such the probable may properly be made if the officer has reasonable commiting believing person or has that arrested is cause for committed Recognizance, §4, felony.” E., Arrest and a 3 I. L. p. 42. may governing a warrant common law arrest without “The respect felony, briefly to treason or follows: . . . With stated as may both in the com- arrest if he has reasonable belief officer an guilt party; and in the of the arrested . . .” of the crime mission Appeal, pp. Orfield, 14-15. Procedure From Arrest Criminal any he, (an officer) may person upon arrest who reasonable “He felony, though grounds, committed a even it after- believes has actually pеrpetrated.” appears 4 Whar- that no ward ton’s Criminal Law Procedure, §1596, p. 244. 50 683, (1926), 685, 1; Snedegar 198 Ind.
State N. E. 254, 257, 849, (1925), 196 Ind. State N. E. v. E.N. 918.
Third, “particulars” Fourth and Under these Fifth: appellant generally asserts that the court committed gross stating, appellant’s error not and that coun- gross neglect sel requiring committed in not court state in its instruction No. that alibi was upon one of the issues case was to be tried and decided. appellant’s
It is true that reason of notice of offense, alibi the state fixed the time of the proceeding, speci aas this result of the time fied became an essential element of the offense. preliminary Therefore a instruction issue proper. However, would have failure been mere of the jury, preliminary court to instruct in- upon every struction element is offense reversible error. Neither failure counsel to сlaim every possible legal advantage for his proof client inadequacy of require per- counsel. does not law representation fection only representa- but such diligence.3 tion case, be with skill reasonable In this at evidence, the conclusion properly the court jury necessary instructed that alibi was element to the state’s case. these Under circumstances we cannot say rеquire that failure of preliminary counsel to in- subject struction resulted in denial alibi of a appellant. fair trial assign Did
Sixth: failure to of the court’s grounds instruction No. as for new trial evidence (1954), 3. v. Hendrickson 233 Ind. 118 N. E. 2d 122 N. E. 2d 493; Reynolds Lunce, (1954), 233 Ind. 5; Stice v. State 228 Ind. 89 N. E. 2d 4. The instruction was as follows:
51 Notwithstanding inadequacy of counsel? the lan guage Jacoby (1932), contained earlier 179, 321, 180 now settled 203 N. E. the law is Ind. charged principal person may a crime as а that a be commis on evidence that he aided and convicted 428, crime, (1946), 224 Ind. 68 Evans v. sion of State 546, presence of evidence to 2d and that N. E. statute, it, upon §9-102, support an instruction based guilty Repl., 1956 makes accessories as Burns’ principals, proper. (1939), is Workman v. State 216 712, 68, E. 2d 21 N. E. 2d 23 N. Ind. testimony present appellant’s case own
In the that place burglary, drove automobile to the he burglary intended, knowledge pro- а was giving of the instruction. vided the basis for proper, and was it therefore fol The instruction there no failure of lows that could be coun by assign the sel reason of failure to his grounds new trial. of the instruction as affirmatively by Appellant has not shown he denied error committed counsel reason of trial, constitutionally guaranteed. Wright fair as v. 551; 593, (1958), E. Henderson Ind. 147 N. 2d State 340; (1954), 233 E. 2d v State Ind. N. . 2d Ind. N. E. Groover v.
supra.
Judgment is therefore affirmed. you provides “I that а of the State of Indiana instruct statute as follows: “Every person aid or abet in the commission of a who shall hire, felony wise counsel, encourage, or other- or who shall command committed, may charged by procure to be indict- ment, he affidavit, in the or tried convicted same manner as if principal, principle or after were a either before offender convicted; and, charged, indicted such conviction he prescribed punishment penalties shall suffer the same as are principal.” punishment of for the law Landis, JJ.,
Arterburn, concur. Bobbitt Jackson, opinion. J., dissents with
Dissenting Opinion Jackson, majority opinion dissent from the J. I following the reasons: search, The seizure
1.
and arrest were
made
any
case without
warrant and not on view.
con
sequent
January
incarceration of the defendant
from
24, 1958,
January
being chаrged
to
without
crime,
technically
the commission
of
while
before this court due to the failure of trial counsel
properly
question,
to
actually
save the
is
before us
pauper
in that
counsel calls the court’s attention to
the denial
the
of
rights
defendant’s constitutional
brief,
transcript
clearly
his
the
shows such de
my
nial. It
rights
belief that constitutional
take
priority
rules,
flagrant
over technical
and the
abuse
rights
the defendant’s constitutional
in this case
proceedings.
vitiates the entire
Suter v. State
227 Ind.
2. The as shown disclose that (or officers received tip) information from a Mrs. St. p.m. John two January 24, about o’clock Acting 1958. thereon the officers immediately went to the failing abode of the any- defendant to find home, they one at police returned to the station. Some- they after p.m., time five o’clock received from word neighbors one of the the defendant had returned. Immediately police returned to home, defendant’s arrested him and him police took first to the station custody and then delivered him into the of the Sher- Clay County, iff Indiana, placed who the defendant jail p.m. day. about ten o’clock of said record are that 3. The further facts shown city 25 feet from there was a courtroom interrogation police station, rоom in the an office just Peace the street a Justice across and a office of another Justice the Peace a block City half from the Hall. During police time the at the officers waited they home, the defendant return to his
station for easily a warrant for the arrest could have obtained defendant, a search warrant to search the premises, any In event their actions here both. reprehensible men had taken for here were who were support defend Con their solemn oath to of Indiana and of the United stitution of the State deliberately yet they law; States and enforce rights deprived the defendant of one of the most basic guaranteed by the Constitution of Indi Constitution. *14 ana, 1, §11; Article Ind. Suter supra. 88 N. E. 2d
If overlook this violation of the defendant's we rights illegal approve con- constitutional period days, by for a three the sаme finement logic, jail person weeks, held three three could be years a warrant or without months or three without any being charged with the commission of crime. sympathy criminals, no I hold no brief and have rights to worst a denial basic constitutional but way paves those for the obliteration of of them rights of all of us. judgment reversed, of the trial court should in- for a trial with
and the cause remanded new suppress the evidence. structions Reported E. in 159N. 2d 393. Note.—