*1 guarantee per annum) and the ($16,000.00) Thousand Dollars quarterly ($500.00) of a bonus of Five Dollars Hundred payment whatsoever balance reference 1971 bonus. saying, promise
As text writers are was “nudum fond pactum.” enforcing gratuitous judgment Spickelmier’s promise pay being supported the remainder of the 1971 bonus
by consideration, clearly therefore must erroneous and Procedure, (N). Appellate Ind. Rules of Rule reversed. Reversed.
Sullivan, Lowdermilk, designation) (by J. J. concur. Reported at N.E.2d 563. Note. —
Enos Indiana. January Rehearing Filed 3-975A194. 1977. [No. denied March 8,1977.] Transfer denied November *2 Terry appellant. Johnson, Valparaiso, for E. of Reiswerg, General, Joseph Attorney Sendak, Theodore L. Attorney General, appellee. Deputy appeals a conviction Appellant Hampton from Garrard, germane felony. to this entering facts of to commit a 1975, January 24, evening of establish that on the Billy entered Hampton opened window and one Dunbar a personal apartment they items of several from which took thereafter, Shortly Lester property including set. a television building, apartment Desser, of discovered a resident into, ob- open apartment broken door of the which had running away merchandise, two men a trail of and saw served top of the men to from chased him on Oak Avenue. He evading Hampton, Desser, hid. After dunes where away get their attempted Butler to Dunbar and Claude road automobile, had blocked but Desser’s brother-in-law trapped end street. three were on dead his car and the apprehended cul-de-sac at a dead end Dunbar and Butler were p.m. approximately his was arrested outside 10:00 midnight to the approximately and was taken back home at by identified scene where he was Desser.
I. Alibi Statute request requiring a notice of alibi filed respond specific of the exact
prosecution with a statement to place to at trial exact the state intended date and the charged. See, 1971, regarding 35-5-1-2. The state IC the offense January 24, by reinterating responded the date stating apartment. of the the location argues meaningful response not this was pursuant court should therefore 35-5-1-3 the IC tending have excluded the state’s evidence to show was not where he stated he his He was in alibi notice. contends comply required with the statute the state was to. specify not date but the time of the offense. language
This express contention is without merit. The requires of the statute the exact date but more. Fur thermore, meaningful provides the statute dis- covery. purpose of the alibi is two statute general principles fold. our criminal Under offense, law where is not time the essence state is proving the of restricted to commission alleged fense the date the indictment or information. Evans 546. In cases N.E.2d identity convincing of mistaken evidence the accused most may capable offering to establish his innocence is to establish reliable witnesses that he was when the elsewhere purpose offense was committed. The statute first is to protect ability committing par do so to a *3 place ticular prove date it to and date and intends as the place hand, the offense was committed. On the other the law recognizes many justly that accused will crime contend produce were elsewhere and evidence to that effect. The purpose second statute is to the advance advise state place of trial of the exact the accused have claims to may when the offense was that committed so investi gate charges the alibi and either the dismiss trial if before it wrong person accused, is discovered the or is secure evidence false, to the if alibi the such be case. While under the may the statute amend to a different date than that originally charged, may respond by accused a new alibi 1971, notice. IC 85-5-1-2. may important
While on it occasion for the to accused dis- day cover the allegedly time committed, offense was discovery doing statutory he has other pur- tools for The so. reasonably poses by specification are served of the date. Thus, discovery provided by reciprocal the statute both is
58 Oregon meaningful. Compare: (1973), Wardius v. 82, 470, 2208, L.Ed.2d where a notice
U.S. S.Ct. process grounds be- alibi was struck down due statute thereby obligation respond limit no cause the to state had proof. its
II. on Limitation Cross Examination Butler, accomplices,
One of testified for the state. Claude During examination, Hampton permitted was to estab cross agreement prose-
lish
terms of Butler’s
cuting attorney
that
who
seventeen
was
County
years
age,
to the Lake
had been referred
court, however,
Department.
Juvenile
sus
Probation
sought
go
objection
into
tained the state’s
when
“charges
This limitation did not amount
referrals.”
see,
(1974), 415 U.S.
confrontation,
denial of
Davis v. Alaska
Accordingly,
limitation
S.Ct.
III. Identification Evidence urges precluded the court have should grounds that
in-court on the identification Lester Desser unduly suggestive pretrial it was identification tainted procedure. procedure referred occurred when *4 building police apartment in a car after to the was returned police him in the car and identified his Desser viewed arrest. persons him as one of the he had seen earlier. correctly confronta-
The allowed the evidence. Pretrial court occurring immediately the offense tions after commission of an apprehension per are not the an accused though unduly suggestive even is the
se accused only present. Wright suspect v. State substantially 285 N.E.2d of the event 650. freshness presented offsets for misidentification the chance the fact apparent custody. Thus, single suspect of a in whether overly suggestive is must from confrontation be determined total circumstances. Here evidence disclosed ample opportunity recognition Desser had for and that he accurately Hampton’s appearance described He attire. uncertainty exhibited no in his identification. There was a testimony. sufficient basis his Hearing
IV. on Voluntariness rested, Hampton When the state testified defense own regarding inquired his alibi. examination, On cross length at police about a conversation he had with the he after presented was arrested.1 After the defense was called Police Officer Kaiser as rebuttal witness. He testified that he given warnings had Miranda and that objected had made a testimony statement. as to the contents of the it statement until was established that the given statement had not been under threat coercion. This objection was Hamp overruled. The officer then testified that any knowledge ton offense, first, denied at denied even acquainted that he was with Dunbar and the other participants already who apprehended. had urged issue on is that failing the court erred to hold hearing presence jury outside the pursuant to IC 35-5-5-1, point Hampton objected where to the officer’s testimony. rebuttal unnecessary
In this it analyze case seriatim the con- sequences sequence of this of events. A violation of statu- objection interposed during an same examination, While cross it objection during was not upon. made rebuttal and now relied *5 hearing' per reversible
tory not se mandate upon can determine basis we error. Where and the other evidence all of the statement contents overwhelming guilt of was evidence produced trial that the doubt, beyond a reasonable harmless an error was and (1976), v. 264 Ind. judgment affirmed. Colvin State should 514, 346 N.E.2d crime was committed. that
Here there was doubt principal witness was identified as a par- Desser, the other but also both Dunbar ticipants. of neither an admis- The statements were any, directly if in guilt inculpatory. error, sion nor failing hearing at the state of to conduct a voluntariness proceedings question in was harmless.
Affirmed.
Hoffman, J., concurs; Staton, P.J., files concurs result and opinion separate RESULT
OPINION CONCURRING IN authority I of no concure result. know P.J. I Staton, recognizes judicially majority cites none which many hand, recognizes justly . law . On the other “. produce accused of will contend were elsewhere crime . .” to that effect. . evidence the exact time that the
If desired discover committed, he have filed would offense was could interrogatory. independent in-court identification was suf principals as identification one
ficient establish Stephens burglary. v. State who committed the supra, Stephens State, In N.E.2d 622. v. Chief p. Givan concluded at 624: Justice regard identification, Mrs. Collins’ testi- “. . . With during clearly mony appellant’s trial that her established solely upon her observa- was based in court identification appearance at of his recollection appellant and her tions irregularity possible Thus, any crimes. the time of identification line-up photograph concerning any ..” harmless.. N.E.2d 276. Reported at 359
Note. — Larry Thompson Monte R. McFarland, Robert Lewis Indiana. Mitchell *6 February 1, Filed 1977.] 2-875A197. [No. Roberts, Wilson, Indi- Roberts, T. Coleman &
Kenneth anapolis, appellants. Joseph Attorney General, Reiswerg, Sendak, L.
Theodore Attorney Deputy General. to this office case was transferred
Lowdermilk, J. This help in order eliminate the dis- from the District Second among parity in caseloads Districts. Larry
Defenidanits-appellants, Robert Lewis McFarland (McFarland Thompson Thompson), from the trial