*1
unwary
such
where
trap for the
statute
renders the
Stone v.
In the case of
purpose
been
has in
satisfied.
fact
court,
1956)
(D.C. Cir.
F.
District
Columbia
corpora
sufficiency
District’s
of notice
passing
to our own made
statute similar
under a notice
tion counsel
following statement:
must be addressed to
Com-
that the notice
“To insist
missioners,
notice
rule out as insufficient a
addressed
and to
delegated
Congress
counsel,
has
the re-
to whom
defending
against suit,
the District
seems
sponsibility for
Congress
hardly
in-
could
have
unreasonable.
failure to observe
us most
to
tended
formality
such an idle
should
day in
.
con-
denied his
court
.
. We
claimant to be
cause a
clude that Section
makes
1-301 of
Code
notice to the
Counsel,
adequate, equivalent
otherwise
Corporation
if
purpose
Section
notice to
Commissioners
hold that sustaining appellee’s appel- demurrer to action trial court’s judgment Appellate Court The therefore complaint. lant’s trial to the court to instructions overrule said vacated with proceed on the merits. with the cause demurrer granted. Transfer Jackson, DeBruler, JJ.,
Arterburn, Givan and concur. in 255 Reported N. E. Note. —
Jones Indiana. February Rehearing April denied Filed 269-S-36. [No. 1970.] *2 Powers, Indianapolis, appellant. William B. Hassett, General, Attorney F. Sendak, Robert
Theodore L. General, Attorney appellee. Deputy charged of as- the offense GlVAN, J. battery guilty found to kill and with intent sault and aggravated and' included offense of assault lesser .court to the battery. Upon was sentenced this conviction Reformatory more less than one nor for not Indiana State years. than five as follows: in this case is
The evidence prosecuting November At 11:30 P.M. on about apartment Noe, witness, fuel oil to delivered Kenneth making Indianapolis. Drive, After of Roosevelt block walking truck, delivery, which was back Noe started alley address. Noe testified that parked in an at the above coming up and two other men saw time approaching turned around to face the As he behind him. *3 him, at men, they within two three feet of to or advanced holding gun appellant in his the a observed which time Noe gun, he that the time Noe saw the testified hand. At about right arm, appellant struck fired. The bullet Noe breaking it. Ray Kingery the testified for State one witness
Another night riding truck on Noe in the oil the that he was alleged Kingery However, assault, question. time of the at the although and testified that he enter to the had started truck alley, he men come down the did not see had seen the three hearing Upon shot, the fired. the he the time shot was them at truck, ducked down and saw two of the three men the entered away. running Noe, meantime, had knocked who been down the
In the got way bullet, feet his back to his and made the impact of his truck truck. He then drove to the inter- cab of the the Streets and 22nd where he Meridian obtained aid section Officer Donald Indianapolis Police W. Drumm. from ascertaining Officer Drumm that testified that after Noe had arm, been shot he the had him removed to Methodist Hos- pital. questioning Noe, proceeded After further the officer Apartment Roosevelt, apprehended 19 at 1475 where he the appellant suspects. Immediately upon and two other apprehension transported suspects Officer Drumm the Hospital Methodist and took them before Noe for identifica- tion. appellant
Noe also testified that he saw identified the Hospital day alleged the on the assault. As the time of appellant the trial also Noe identified as the who one fired injured the shot which had him. alleges
Appellant
proved beyond
that
it has not been
perpetrated
upon
reasonable doubt that he
the assault
Noe
testimony
reason
that Noe’s
was
corrobo
by any
person.
Kingery
rated
other
It
that
true
identify
stated
positively
that
could
appel
However,
testimony
lant.
his
indicates that at no time did he
get a
appellant,
standing
close look at the
whereas Noe was
face to face at a distance of not over three feet at the time only
shot
was fired. He not
identified
attacker
day
on the
crime
was committed but also
him
identified
open
day
on the
court
trial. This Court has held
times that a conviction
sustained
uncorrobo
testimony
Stalling
rated
of one
witness.
yond reasonable doubt one who weapon reason
fired shot used in *4 was not and the assault recovered thus linked to authority appellant. Appellant cites no this any authority requiring are find proposition nor we able to weapon produce a used in an the State assault. Such a course, thing is, weapon of desirable if the is available. But certainly weapon may fact of an a assault where is used
484 weapon apart by separate from the proved
be evidence 242, 245, 56 E. (1900), 154 N. Keesier itself. v. improper argues appellant conviction was Next that investigating a police not conduct because officers did paraffin have estab test appellant, would test discharged recently a lished whether or not had again although paraffin test firearm. Here quite prove or useful either to innocence instances guilt, requiring proposition reversal law we know of no of simply of a were not conviction because known scientific tests by police. used police next claims the failed to advise officers required by rights Miranda of as his constitutional (1966), 16 86 L. Arizona S. Ct. U. S. However, Supreme by pointed
Ed. out as United Miranda and related States in the cases, appellant harmed must show that he has been give case, police of In the instant failure this advice. police any at never made all to the admissions guilty. plea officers and trial There is went to on a any absolutely no that he ever time evidence case any We, any admitted there connection with crime to one. fore, applicable. hold Miranda is not immediately error
Appellant next claims there is hospital where he was upon was taken to the his arrest he lineup benefit of a formal Noe without identified presence appellant’s counsel. It is and without this is a violation of his constitutional contention that (1967), rights in U. S. v. Wade 388 U. S. set forth 1926, 18 1149 and Gilbert v. Ed. 2d Ct. S. California Ed. 2d Ct. 18 L. both 263, 87 U. S. S. Supreme the United Gilbert, Court of States faced arraignment appointment where a situation they subjected the defendants had been represent lineup as an describes unconstitutional the Court what
485 appointed without and notification their court with- any opportunity present lineup. out for counsel to be at officer, In police the case a de- at bar the who had obtained scription attackers, immediately to the scene of Noe’s returned of the attack where he and two arrested companions. immediately He then them to Methodist returned Hospital supposed for identification The situ- victim. ation in parallel at bar Wade and Gilbert case does not situation. those cases the describes a situation which deliberately long is after calculated to obtain identification charge arrest accused, whereas in case at bar good police apprehended suspect work dictates an be immediately taken supposed before victim for identifica- only .criminals, apprehension tion. This is not aid important safeguard person but more is an to a invaluable might mistakenly officers, who but be arrested when taken before the victim of the crime would be released because positive person of a statement of arrested the witness that the sought. person police To hold officers cannot suspect allow a victim of crime to see until after that suspect arraigned appointed present can be and counsel any confrontation would be an unrealistic and persons. instances an unconscionable detention innocent We, therefore, principle lineup hold that the confrontation set application forth in Wade and has no Gilbert (1969), case at 254, bar. McPhearson v. State 253 Ind. 253 226,19 N. E. 2d Ind. Dec. 561. things
The trial court in all is affirmed. Hunter, Arterburn, C.J., J., concur; Jackson, J., concurs result; DeBruler, J., opinion. concurs with
Concurring J. The standards DeBruler, set forth in U. S. v. Wade 213, 1149, (1967), 388 U. 18 S. 2d Ed. S. Ct.
grant right defendants criminal to assistance of a law- pre-trial apply stages, does pre-trial
yer at all critical
v.
Stovall
occurring prior
to June
identifications
Ct. 1967.
87 S.
293, 18 L. Ed.
U.
Denno
S.
Noe at
the victim
between
The confrontation
and,
November
Hospital
on
occurred
Methodist
Lewis this case.
inapplicable to
therefore,
rule
If the confronta
(1969), 252
250 N. E.
day
effective
appeal had occurred
*6
tion in the case
definitely apply
judgment,
my
would, in
it
of Wade rule
rule,
of
the rule
effective date
Prior to the
here.
however, appel
here,
Denno, supra,
apply
would
Stovall v.
concurring
my
urge
application. See
its
lant’s counsel does not
If the confronta
454,
I do further ad- majority McPhearson and by in Lewis and today, majority opinion because hered to and defined persons, assumption innocent the fallacious it is based on offenses, bene- having will be suspected criminal of committed custody suspect in exception which denies to a this fited lawyer present pre-trial right confrontation at a to have shortly As- place has occurred. offense which takes charged. he is for an offense which sume a man is arrested required police are better off if the the innocent man not Is lawyer accompany him to to can to wait until the man hire alternative, required to are scene or in the identification this right suspect voluntary of his to waiver from the obtain a alleged assuming lawyer present? Even have fresher, memory appearance his assailant’s victim’s might delay the identification result the inno- that a over-nighting jail, suspect this man’s ultimate is cent likely charge he has acquittal not more occur if custody desiring present? right An innocent man in supposed immediate confrontation with his victim to have counsel, get by waiving right can one counsel. without inapplicable fully I Wade rule to this case and Since the majority of all other disposition concur in the issues I the conviction. vote affirm
Jackson, J., .concurs.
Reported in
Note. — Indiana.
Jackson February Rehearing denied 569-S-110, Filed 569-S-111. [Nos. May 14, 1970.] *7 Indianapolis, ap- Robinson, Spencer, Frank E. Robert pellant. Attorney General, Jahr, Sendak, Aaron T.
Theodore Attorney General, appellee. Deputy