*1 petitioner’s pleadings compel is sufficient face petition denial of his for mandate.
Petition denied.
Jackson, J. C. concurs the result.
Arterburn,
Myers,
Landis &
JJ. concur.
Reported in
Note. — of Indiana.
Greenwalt July 26, 30,261. Filed 1965.] [No. *3 Henley Hoadley, Dixon, & A. of Bloom-
Thomas appellant. ington, for General, Steers, Attorney K. E.
Edwin Carl Graf, Attorneys and Frederick J. Deputy Van Dorn appellee. General, for charged Appellant with by was affidavit
Myers, J. deadly robbery weapon. He the crime with was by jury, guilty, was found and was sentenced tried imprisoned twenty-five years, pur- from to be ten to provisions §10-4709, Stat., suant Burns’ Ind. Replacement. only assigned The error has as grounds overruling for is the reversal of his motion for Argument The appellant’s new trial. section brief propositions, alphabetically is divided into seven let- “G,” grounds tered “A” to which asserted are granting appellant a trial. new propositions first of jury’s these states that
verdict is not sustained sufficient evidence and contrary
that the verdict is law. determin ing so, if this is only consider we that evidence together State, is most favorable to the logical with all reasonable and may inferences that drawn therefrom. Music
The evidence most to the favorable State is as follows: On 14, 1960, October Jennings, Russell owner operator Jennings Filling Station and General Store on Road Hamilton, east Indiana, saw two motorcycles stop men on driveway the end of the cyclists front of his store. The were in their twen- ties, riding one motorcycle a red with white saddle- bags while motorcycle the other on a was dark saddlebags. black This occurred at 8:00 about o’clock evening. Jennings’ in the son-in-law, Richardson, Jack present he, too, the store also noticed *4 cyclists, sitting who remained for a while and then away. drove approximately At p.m., 8:50 after Rich- ardson pick up had wife, left to his two men entered They the wearing, store. Jennings were what de- as, “darky scribed masks” or Halloween masks with stockings pulled
ladies’ of over them. When one the pulled gun money, a men on him and demanded his Jennings frightened, ordered became and he was go to the of the store and lie down. The back twenty-two one, gun a a caliber used was barrel, hand-grips an and overall five-inch white length precisely p.m., 8:59 of eleven At inches.. Although Jen- left side door. two intruders being nings money taken out of did not see robbery register, when checked it after cash he Of had been taken. he found that about $136 $136 among taken, change, was a roll of which was $24 amounting quarters Also, as the men were $10. cigar Jennings carrying a leaving, saw one them money contained some of the and box which had nearby. later found in a cornfield was robbery, Kathryn night Fee On the Mixing Drug working as Bowl a clerk in Store Indiana, Hamilton, located miles from about two evening appellant Jennings she That saw Store. again p.m. p.m. occasions, at 8:15 once at 7:45 two time, appellant Fee asked Mrs. for a full The first Thinking did not have of rubber. that she mask made companion male any, she directed Store, which is one his to the Booth General store Drug Appellant and away from com- Store. his purchased from panion the Booth Store and he went p.m., mask. At 8:15 colored-man’s Booth a rubber Mrs. Drug Store, and this time appellant was back big lips. appel- purchased a man’s mask with Then he he asked for Booth Store where returned lant largest, stockings, got pair ladies’ heaviest, darkest, 10-1/2, with the trade size and the name “Cannon.” night robbery, p.m.
Shortly 11:00 on the after entered one Christian V. Schneider *5 Indiana, appel- Corunna, the Smith Tavern where he purchased six-packs lant two of beer which paid quarters. As were to leave the two about Treesh, Tavern, they stopped asked Garland and neighbor join a them Schneider’s, if he cared to game home, for a cards at located the Schneider asking Corunna, agreed, and, Indiana. an- Treesh after man, Leins, them, join other E. left. men While to playing cards, appellant Treesh that and noticed both change. Ap- great Christian Schneider had a deal of pellant quarters. had around worth of $10 a.m., about 8:00 day,
The next October Treesh if spoke Treesh. She asked Mrs. Schneider appel- her husband he whereabouts knew they up jail, lant, her locked he told were something there replied knew that was which she she going going see could that she if she on and was anything. help her She invited Treesh to discover home, proceeded they the Schneider As into look. descrip- motorcycles of the Treesh noticed two same Jennings been in front of the Store. tion had seen that appellant and ride these had seen Schneider Treesh examined Mrs. Schneider numerous occasions. saddlebags motorcycles, they on the and then went present. also into the house where Mrs. Greenwalt was proceeded to where under some three the basement containing plastic discovered a sack Treesh rafters stockings appellant masks and the the rubber robbery. night purchased had on the Next twenty- containing plastic sack, a there box length pistol two of an of eleven inches caliber overall examining items, pearl handles. After with white Also, replaced them he had Treesh found them. where basement, while in the Mrs. Schneider removed some dryer overalls from and stated night and that Schneider had worn them before they they got had been off wet when their motor- cycles. Shortly after, police Treesh notified who masks, stockings came pistol and took the into custody. Jennings their identified the masks as the night.” “like I masks seen that evidence, appellant In to the above contends support jury’s verdict. insufficient particular, argues he was never directly Regarding identification, identified. this court *6 repeatedly has held that: question identity “The of is fact not of one bearing Therefore, upon of law. all evidence question and it is for the it jury, must be submitted jury to determine whether satisfactory trustworthy. is . . .” (1946), 587, 590, Medsker v. State 70 N. E. 182,183.
2d regard point, And in to this court has further this stated: essential, is not “It order to the con- sustain appellant,
viction of he should have been trial, by positive identified at the or direct evidence, guilty person. as the It was suffi person cient if his identification as such by circumstantial which sat established evidence beyond jury . . isfied . reasonable doubt.” (1908), 317, 323, Craig State 171 Ind. 86 N. E. 397, 400. proposition “A,” ap under In above addition pellant also contends that conviction based on cir appeal. evidence cannot stand on
cumstantial response state, to this we we have so held, that a conviction based on circumstantial is valid if there is some evidence substantial evidence probative of from which a reasonable value inference guilt McCoy may of et State be drawn. al. v. concerning And, 654, 660, N. E. 2d 190. 237 Ind. evidence,” presentation of “substantial following recently rule of law In- confirmed diana : only . It
“. . when there an absence of on element an essential substantial evidence alleged crime, an evidence is or when the rea leads one without conflict and to but sonable conclusion the verdict contrary conclusion, the ver reached a being supported dict not will be disturbed as being contrary or to law.” sufficient evidence 560, 566,187 Weaver N. E. 485, 488. 2d Despite above, out all the evidence set argues proposition “A” there was not still from which the could
sufficient evidence have connected with the crime and guilty beyond a reasonable found him doubt. findings of separately questions various He further proof of individually that do not constitute facts allegations include These of the affidavit. the material revolver, ownership questions in to the presence finger purchased, why the masks were basement, and prints rafters Schneiders’ *7 response this, we state that on and so forth. so court need not be convinced that well settled this it is required doubt, beyond and all that is a reasonable supporting appeal evidence is there be some that affidavit; in allegation the every of material finding determining or a a is sus verdict whether weigh evidence, court will not by tained sufficient only conflicting evidence, consider that tend but will Arrington judgment. v. State ing support the 210. 386, 103 N. E. 2d (1952), 230 Ind. consideration the
Consequently, a careful of from there cer that above, set out we conclude evidence 616
tainly by was substantial evidence the which jury identify appellant could and connect with jury’s the crime and the which verdict very recently thus sustained. weAs stated Ponos in 411, 414, State 184 E.N. 2d 11: v. “This court not to de- will examine record the termine whether or not the evidence sustained of defendant’s construction the evidence in favor only It of his innocence. will consider whether or court to form a jury not the evidence for the sufficient or finding guilty. its basis for ...” proposition appellant “B” argument, Under of his go points basically (a) makes various to: together keeping jury during the the trial and not permitting separate, (b) keeping them to together jury during period of deliberations. point
Under the proposition, of this first permit claims jury, that was reversible error to during trial, separate under directions and gave jurors. instructions that the court to the To support contention, appellant his cites as his chief authority Whitaker carefully report
N. E. 2d 212. We examined the have case, of this and we also have noted with care opinions case, interest the various contained in that agree majority dowe not that opinion supra, case, pre Whitaker states vailing separation view in Indiana in during non-capital trial of feel cases. We correct statement law is found in case, Judge supra, opinion by the Whitaker in the “Concurring Part Arterburn entitled and Dissent ing (at pages page Ind., Part” 2d): 220 of 168 N. E. involving feel defendant case “We mandatory right sentence has death upon request, require, kept to-
617 gether during permitted and not be the trial emphasis) separate. (our to other cases all whether determine the court has the.discretion together during the kept or not a should be separate under direc- permitted trial or tions and instructions give. may as court by this exercise of such discretion is reviewable event, alleged any In such Court for defendant abuse. prejudicial error.” must show Judge supra, case, Furthermore, Whitaker in the rejected Judge expressly ma Achor Landis quotation jority opinion’s State from Silverman which, 225, 549, turn, (1927), 199 E. Ind. N. 663, 141 N. E. Faulkner used State authority. 514, also Both of these cases were its opinion, In his cited as authorities. Judge Judge concurred, Achor stated Landis 2d):
(at page Ind., page 216 N. E. 684 of 240 they “I at the were written do not believe time (1927), 199 Ind. the cases Silverman v. Faulkner v. State 156 N. E. quoted 141 N. in the E. cited opinion correctly the common law stated either legislative separa intention relative to or the during non-capital juries the trial tion of cases.” judges in Whitaker Hence, majority of three disagreed appellant’s case, supra, contention existing of the law in Indiana to the view Consequently, in this non- matter. on this case, it within discretion of capital during trial, jury, permit trial and instructions separate under directions gave and, separation of jurors, since to the discretion, error no is within the court’s showing prejudicial is a committed there unless error and abuse of discretion. anticipated ex the view
Appellant seems have pressed above, only and not he does admit
prevailing jurisdictions gives view in other *9 judge discretionary power permit trial sep to during aration of the trial the over de objections, fendant’s he also claims that in the but by matter there hand of discretion the abuse it separate when allowed to view of publicity.” However, “voluminous fail to we find any proof record newspaper of the contents of Furthermore, articles or news if other media. even publicity,” appellant there were “voluminous claims, attempt no is to show its communication made communicated, one jurors, that, or more of if or jurors one or permitted to affect his more it subsequent regard appellant’s or her conduct matters, case. In to such this court has held separation jurors that of and communication with others is not a cause for a trial new unless action probably City Albany influenced the verdict. New of (1891), 500, McCulloch 26 1074. 127 Ind. N. E.
Concerning argument of Indiana his that State establishing should no undue bear burden of brought separating upon influence was to bear any jury, au has failed to cite binding thority court, and, therefore, on this pass Supreme do upon we not have it. Rule Court (f). 2-17
Appellant’s proposition second under contention “B” jury during is there was misconduct period attempts He deliberation. to establish by attorney. such misconduct an of his With affidavit respect circumstances, to such this court has held as follows: “Among grounds assigned for motion for the of the jurors. one
a new Such by is misconduct of trial attempted misconduct established appellant’s affidavit, the affidavit is not' but
619 by exceptions. brought record a bill into the alleged misconduct, necessary prove It affidavit, attempted by an it must be and when brought by exceptions. bill of into the record Hoby, 111; State, Ind. Ind. Beck v. 72 Elbert v. 349; 250; Mattingly, Ind. Elliott’s v. McDaniel Proced., App. 817.” “Therefore, question as presents no the record alleged misconduct.” Rains v. State to the 86, 87, 36 E. 533. N. appears then, it From the above misconduct; and, merely allege, prove, not must first affidavit, second, to do when wishes he bring record he must affidavit into the McCoy exceptions. by way bill 104, 116, 2d N. E. *10 49, appellant misconduct made to affidavits judge. They part on the forth of the trial were not set exceptions. any of court as follows: bill This said during “However, place matters take may presence trial of the be and in court proved only by properly of authenticated bills exception. support failed to has The any her the contention misconduct occurred respect mentioned. very in this silence of the official record “The showing any matter, the record curred, attempt to of have with no it, any amended correct if error oc- against appellant’s con- is conclusive part on the of there misconduct tention that was the court.” require- comply Appellant has failed either question therefore, ment, presents for this and, no court to determine. “C,” appellant questions proposition
Under discharge jury propriety of the of the first appellant. The rec- subsequent trial and conviction on impaneled that a and sworn ord was shows 2, 1961, 1961. On November after some October presented by State, evidence had been juror’s death advised of the of one of the mother. Following juror, an examination who indicated give not could her individual attention she appellant’s case, the trial of the court withdrew them, ap- from case dismissed to which pellant excepted. Then for was reset trial cause January 8, January 2, 1962. On plea jeopardy special plea filed a of former and a acquit. pleas, State demurred to these autrefois and the court sustained the State’s demurrer. Now appellant complains that it was error for the court to sustain the demurrer. State’s consideration, appellant’s
After careful
we feel that
proposition
contention under
“C” is without merit.
for
First,
This is so
two reasons:
have
we
held
jeopardy may
proved
that double
a de
plea
and,
fense
not guilty,
under a
conse
quently, it is not error
sustain a
demurrer
special
answer. Holt
Second,
Finally, point, our own statute on Burns’ Ind. this Stat., §2-2018, reads: discharged by court, may “The be acci- juror, or other
account of a of the sickness calamnity----” or dent Legislature Obviously, in its intended wisdom remedy to situations one above statute justice existing at hand fair so case prevail. to see re is difficult how the ness could It juror moval of has been clouded whose mind grief by the one harm of a loved could be caused loss contrary fact, appellant. In prejudicial ful or Appeals held in the Alabama true. As Court Spelce App. 412, 416, (1924), 20 v. State Ala. 694,698: So. requires argument the effect “It no show upon juror receiving upon infor- the mind mother to render
mation of death of his was incapable consid- him eration and gation of that calm and deliberate reasoning investi- due magnitude. importance of cases unquestionably duty It discharge was court juror under such circumstances.” alleges “D,” proposition Under the selection of an was error for allow juror. The that when record alternate shows for an alternate made its motion the State objection interposed by appellant juror, was no ruling. Also, appellant did the court’s when before objection. any give for object, reason his he failed to any overruling of Finally, record does not show objection. before, spe appellant’s we have stated As Prough objection given. grounds must cific an Also, 142 N. E. 603. (1957), 236 Ind. 2d v. State ruling have made on held that a must been have we Siberry objection preserve error. an then, 936. From we E.N. the above preserved properly. In ad no error was conclude that juror not re- dition, note that the alternate we *12 622 deliberations,
quired to, not, part did take in the thus, any possible harmless, and, is so error was that (1951), grounds 229 not for Hedrick v. State reversal. 381, E. 2d Ind. 98 N. 906. Argument, proposi- of his
Under the section same “D,” appellant tion also contends that the selection juror accomplished
of the under alternate post argues an ex He that statute. facto Stat., Replacement, §4-3325, Burns’ Ind. 1946 provides jurors, for selection of alternate is 1, 24, conflict with Art. the Constitution of § pass Indiana. not We do feel have to this we authority support matter since no con- is cited Supreme (f). tention. Court Rule 2-17 “E,” alleges proposition appellant Under overruling require erred in court his motion State to inform him of names of the wit by nesses to be called intended to State prove its ap case. To contention, sustain his pellant v. State (1960), cites as Brown authorities Jencks v. United States 241 14, Ind. 290; 158 N. E. 2d (1957), 657, 353 U. S. 1 1103; S. Ct. L. Ed. 2d (1959), Anderson State 156 N. E. 2d 384. examined We have these carefully, cases we find none point. fact, them are in In three cases mentioned concern surrender re ports used State’s to a witnesses defendant use on Therefore, cross-examination. appellant since present has failed uphold authorities con his waived. White tention, any respect error in is 894; Supreme 152 N. Ind. E. 2d (f). Court Rule 2-17 “F,” proposition
Under cites error as overruling of for separation court’s his motion find com- no error the State’s witnesses. We separation of witnesses here mitted since wholly granted a favor and a trial Butler v. State the discretion trial court. within N. 2d 492. 97 E. “G,” proposition, proposition and final his last revers- contends that committed *13 handling the ible error in of the instructions to its jury. alleges
First, appellant it the that was error on part jury the court’s to read the State’s instruc- to basically 2 4 and 4. Instruction No. dealt tions Nos. proof robbery of the of and the burden with elements prove sustain to its case. which the State has to jury simply 2 of the No. advised the Instruction showing age necessity appellant’s by the State of argument regard robbery. Appellant’s the crime to of confusing. vague Basically, point on this is and he unnecessarily empha- contends that instructions and instructions size one element of the that crime province However, appellant jury. of the invaded over-emphasized point is out what element fails province jury and how or which invaded. it was
Second, reversible contends give for the to refuse his instructions error court 1, 3, 4, 11 6, 8, 10 11. Instruction No. Nos. and for the inform the material- called court to of the ity age. above, appellant’s pointed out As it was already 2 State’s No. had covered this instruction point. Appellant’s 8 of the instruction No. which was nature No. 11 same as his instruction was also simi- larly Again, instruction No. 13 dealt covered. court’s matter also. with this geared 10
Instructions Nos. were making propriety of affidavit under which charged. record, note was From we these clearly instructions were since there erroneous evidence that the uncontradicted affidavit was sworn Barhydt presence to under oath Cecil in the Prosecuting Attorney. No. 3
Instruction is erroneous effect because in calls for a directed verdict which the court had over- previously. ruled
Appellant’s instruction No. deals with the burden proof prosecution bear must
which is based on circumstantial evidence and jury’s with what respect role is to the credibility reviewing record, witnesses. In adequately substantially we find points covered these instructions 14. Nos. Similarly, appellant’s instruction No. es which in sence dealt with advice on how to appellant’s identity evaluate evidence in jury’s judging credibility and the role aof witness, substantially satisfactorily discussed and covered in the Nos. 10 court’s instructions and 14. *14 before, As court has held it is not to error refuse give instruction, notwithstanding an to it states principle case, applicable correct if it to al the has ready substantially adequately by been covered or given. Kennedy other (1936), instructions State v. 316; 209 Ind. N. E. McClanahan v. State (1954), 317, 117 233 Ind. E.N. 2d 749.
Judgment affirmed.
Achor, Landis, JJ., Arterburn and concur. Jackson, J., opinion C. dissents to follow.
Dissent J. This dissent will be limited first Jackson, C. question separation jury the of the of the over the objections question appellant, the and second discharge jeopardy occurring by reason of the of double objection jury of the over the of the first jury after had been sworn and evidence adduced in the cause. thorough involved,
A
search of
case
indi
law
majority
in
opinion
cates that
its discussion
(1960),
Whitaker
240 Ind.
168 N. E. 2d
v. State
concerning
assumption
makes an erroneous
prevailing
concerning separation
view
Indiana
jury during
majority
trial
The
felonies.
opinion
upon
separate
relies
statements
con
made
curring
dissenting
State,
opinions
in Whitaker v.
supra.
legal
Such statements have no
basis
Indiana
establishing precedent.
attempt
to construe
The
statute,
legislature
where no
words
indicate
a difference in
of different
of felon
treatment
classes
separation
ies in
jury,
is in violation
principle
statutory
of the first
of criminal
construc
tion;
strictly
a criminal statute
be
will
construed
favor of
criminal defendant. All the statute
states
they
where the
separate,
is allowed to
will
properly
by
Court,
admonished
common
but
developed
separation
law as
in Indiana states that
not
specifically objected
will
be allowed
where
(1831),
Jones The
defendant.
State
475;
Blackf.
v.
Anderson
The State
22; Quinn
The second concerns discharge legally resulting jeopardy of the from the objection appellant. impanelled jury of the over the E. 15 N. 2d Armentrout v. State case, capital a most which is a not contains concerning jeopardy exposition double lucid of the law discharge mandatory. and when Judge succinctly, at opinion Roll stated page 275, danger “Jeopardy or peril is the life and liberty person has put when he been com- charged regularly mission sufficiently and with arraigned crime; and of a has been pleaded charge; put upon trial been his to such has organized compe- properly and before a tribunal tent to has try charged, him for offense and competent impanelled persons from been try duly on the sworn cause sit trial undisputed charged due deliverance. It is discharge clearly filed for a shows motion requisites present were all of the above only question presented was whether this case. discharge jury under the cir- or not the prevent jeopardy case would cumstances 12ed, attaching. Criminal Law from Wharton’s says: p. §395,
vol. charge trial of a criminal has been “After the regularly upon, or- duly a court entered before subject having jurisdiction ganized, *16 charge, competent try of the the matter and defendant, support on an indictment sufficient judgment any may rendered, with a be jury properly sworn, a lawful selected and dis- charge jury, of consent of the such without the the accused, of of a state without existence provides for a dis- facts under which the law charge verdict, equivalent jury a of without charge, acquittal of the of to an defendant the The and he cannot only sworn thereafter be tried thereon. jury impanelled for which a causes try charge an on accused a criminal can discharged by the be court without a verdict are: (1) prisoner; (2) (a) the Consent of Illness of one court; (b) prisoner, (c) jurors, of or the the the juryman; (3) (4) Impossibility of a Absence of jurors agreeing verdict; (5) the on a un- Some impossible; toward accident that renders a verdict overwhelming (6) physical Extreme and or legal necessity.’ (1861), “In the case State v 16 Wamire Ind. 357, 357): (p. the court said “ following points ‘The of criminal law are set- Court, tled in this State: 1. If the the without discharged defendant, jury consent of the submitted, whom his cause has been ver- before dict, imperious necessity no rendered dis- charge necessary, acquittal it works an de- fendant; ....’ (1856), 325, 327, “In Miller court said: “ discharge jury ‘The of the must result from necessity, necessity by law, determined or it ” prisoner.’ will release the case imperious necessity bar no required discharge jury. of the proprie- amenities and ties of the situation could have been observed without discharging jury. It nothing is obvious that discharge predicated this cause was grounds legal determined to necessity. It must be noted that Holt v. State 223 59 N. upon by E. 2d relied majority authority as sustaining demurrer, State’s Ar- reaffirmed gen- State, departed supra, from the v. mentrout but State, the defendant in Holt v. eral because rule discharge object supra, to the did not appellant in the did the case at bar. majority opinion that
As to discussion in the “passed Supreme Court of the United has States exception point”, must the state on this we take majority ment of Wade reliance on case L. U. S. S. Ct. Hunter v. Hunter Martial Ed. Wade dealt with a Court 974. proceeding Supreme determined which was during war, army tactical of an Court that conditions *17 changing conditions, conditions and under battle were imperious necessity a mistrial would allow which accruing jeopardy to the defendant. to occur without public will in that case that interest It stated constitutionally guaranteed sometimes subordinate background always Supreme rights, in all but opinions in this are of Justice Court area words Story Coolidge, in United States v. 25 Fed. Cas. (No. 1815), 14858), (C. C. D. Mass. were discharge reached discretion to it has before “only very a verdict is to exercised extraordi striking nary position circumstances.” Such a v. United was adhered to Downum States 734, 10 L. such 372 U. Ed. 2d which cases S. distinguished Hunter, supra, as as Wade v. were being general not indicative rule. extreme Supreme Court of the United reversed States closing supra, States, Downum United with the any page 104, in favor words at resolve doubt “[w]e liberty citizen, rather exercise what than judi arbitrary unlimited, would be an uncertain and cial discretion.” reason that trial
For these reasons and for the a con- employed means, other have could discharge tinuance, showing there can be no grounds legal imperious of an na- was made sound ture, therefore, judgment re- should be versed cause remanded instructions grant appellant’s motion trial. new Reported in 209 E.N. 2d 254. Dissent in 210
Note. — E. 2d 373.
N. Selking
Rice et et al. al. 30,510. May 26, [No. Filed 1965. Reconsideration September denied 1965.] *18 Logan, C. R. McNabb Wayne, and Thomas D. of Fort appellants. for
John L. Schurger, DeVoss and H. Severin of De- catur, Baumgartner, Berne, Kenner, Howard E. Gordon, Miller, Huntington, Ice, Miller, Glenn & Ryan, Indianapolis, appellees. Donadío & judgment appeal Curiam. This is an from Per against injunction denying permanent establish-