*1 Judgment affirmed.
Staton,
J.,
P.
Hoffman,
J. and
concur.
Reported at
Note. —
Allen v. State of Indiana. August 18, Filed [No. 2-274A53. 1975.] Eisenberg, Donald Madison, S. Baratz, Arnold Paul counsel, Indianapolis, appellant. for Attorney Sendak, General,
Theodore L. Wesley Wilson, T. Deputy Attorney General, appellee. jury trial, appellant Pettigrew P.J. After a
Sullivan, guilty possession found of both of heroin1 and of heroin.2 § (repealed 1973). 1. Acts 280 2 ch. (repealed 1973). 280 2 Acts ch. argues vague; charging impermissibly He that the affidavit is failing mistrial; the trial court erred in to declare a insufficient; the evidence of sale and that his contrary for both and sale is to law. reverse the heroin and affirm the
We sale of *2 conviction for of heroin. on that evidence to the State reveals most favorable Indianapolis Department nar-
October four Police 1972 conducting house cotics were certain detectives a search of a investiga- During Indianapolis. located in the the course of tion, They Bilbrey Detectives and Horn left the house. highway overpass stationed distance themselves on a a short away kept and the two house under The other surveillance. occupant, detectives remained in the house with the Joann Milton, Pettigrew personal with whom had “close had a affair.” positioned, Pettigrew the
With the detectives so arrived on scene in parking, Pettigrew an auto. After walked onto porch the gain- approached the house and the door. Before ing entry, edge dropped he porch returned to the of the envelope ground a white porch steps. the He beside the door, then returned to the knocked and was admitted. Pettigrew’s by Bilbrey actions were observed and Horn inside, instructing who then radioed the two detectives them Pettigrew. Bilbrey to detain and Horn returned toward the envelope and retrieved the house which had the name Pettigrew’s “Pettigrew, wife written on the front as follows: envelope forty (40) Mabel.” The individually contained wrapped packages foil of heroin.
Testifying behalf, Pettigrew in his own connec- denied envelope the merely tion with and claimed that he was at- tempting acquaintance. to visit an DID
APPELLANT NOT PRESERVE ERROR ALLEGED WITH RESPECT TO THE AFFIDAVIT Pettigrew attempts charging to attack the affidavit under theory impossible the that it would be for a neutral and de- probable magistrate that from the affidavit to conclude
tached committed crimes had been the cause existed to believe them. (Pettigrew) had committed that argument con- misplaced can be the this To extent that affidavit, charging sufficiency challenge of the to the sidered a challenge the Pettigrew did not it fails because charge Thurman prior to trial. v. State App. Ind. ERR
THE DID NOT IN FAILING TRIAL COURT A MISTRIAL TO DECLARE During trial, repeated the the State made unsuccessful Bilbrey attempts testimony of Detective concern- introduce ing telephone by Pettigrew allegedly call made to Joann objections testimony, made Milton. numerous to the Nevertheless, Pettigrew all of which were sustained. contends repeated attempts by introduce phone prejudiced jury call so *3 should have declared a mistrial. argument
This correctly observes, must fail. As the State Pettigrew at Likewise, no time moved for a mistrial. he failed request jury
to immediately the be instructed disregard to phone the references the to call. All of Pettigrew’s objections disputed testimony to the were Furthermore, gave sustained. court the- trial Defendant’s admonishing jury Instruction disregard No. 1 the to refer- all telephone Pettigrew ences to complaint the call. has when no the trial court did all he asked.
THE THE EVIDENCE IS INSUFFICIENT TO SUPPORT FOR SALE OF HEROIN
CONVICTION Pettigrew with reference contends to his conviction that, most, proves attempted sale at the evidence to hide prevent being apprehended the heroin in an effort to with it person. his Pettigrew defines which convicted3 The statute under “sale” as follows: barter, every “(10) any and sale and includes ‘Sale’ means (whether exchange, gift not the or offer thereof or offerer ability present complete transaction), manu- the to said
has any facture, other handling, packing processing, transporting, or production.” persons. implies Buckner “Sale” a transaction between 379, v 252 Ind. .
348.4 tending in The record the instant case is devoid of prove any to or communication transaction between Likewise, person other with reference to the heroin. tending prove there is no evidence the existence dis- of a prearranged Furthermore, scheme tribution or sale. man- Pettigrew disposed ner in of which heroin not would support dispense. of an inference intent to deliver or beyond possession heroin evidence of of is conclusive However, proof possession a reasonable doubt. mere support insufficient to a conviction for sale. Buckner State, supra. Therefore, v. the conviction sale heroin must be reversed. obligated discharge
We consider ourselves upon order rather count than retrial. To place do otherwise is to court position, the trial in the untenable in the of a event subsequent upon retrial and conviction count, the sale vacating or, alternative, in the vacating the which we herein Thompson affirm. See 1935, §1, amended, 1961, ch. 280 as §1; Acts Acts ch. 90 Acts (repealed 1973). P.L. ' decided, 4. At the time Buckner was “sale” was defined as follows: barter, qifer. “(10) exchange, gift, ‘Sale’ or therefor, includes by any person, each such made principal, pro- transaction whether as *4 agent, employee.” prietor, servant, or alleged at “Sale” defined the time as to have violated manufacture, processing, transporting, handling, statute included any packing, production. or other Reason dictates that before of support sale, these activities could a conviction for there must exist evi- which dence from tivities were done in a reasonable inference could be drawn that such ac- preparation underlying in for furtherance of an or agreement sale scheme. distribution 394 412 724, cert. den. 587, N.E.2d Ind. (1972), 290 259 State
v. 943, 93 S.Ct. U.S. The heroin is affirmed. possession of for
The conviction the defendant reversed and of heroin is for charge. discharged as to that is ordered separate White, concurs; J., with Buchanan, J., concurs opinion. Opinion
Concurring directing acquittal appellant’s of My reason White, J. charge selling new trial would heroin is that to order a of put jeopardy right in twice be for the same his not to violate Constitution, I, 14; Art. United States Indiana offense. Sapir XIV; Constitution, and Amendments v. United States V 373, 422, Thompson, 426; 99 L.Ed. (1955), 75 S.Ct. 348 U.S. Emerging Evidence: Doctrine The Reversals Insufficient Furthermore, Acquittal, L. Appellate 8 Ind. Rev. 497. discharge. appellant’s statutory requires we direct law (Burns Code Ann. 35-1-47-10 35-1-47-13 Ind. Stat. §§ (1921), App. 292, Ed., 1975). v. Ind. Sudlow See, also, Ritchie v. State 243 Ind. N.E. 429. Supreme held wherein the Indiana Court rape sustain the insufficient to conviction but the evidence convicted defendant of the lesser offense of to have sufficient gratify battery with intent sexual desires. assault by reducing modified rape was ordered it to the Here, proven. course, offense included lesser already and sentenced defendant on convicted the lesser has opinion in the Ritchie statement offense. One nevertheless appropriate here: justice by avoiding is best to us that served “It seems already facts found where a fair trial trial over second place. If error had occurred therein which
has taken
unfair,
the trial was
accused so that
prejudiced would,
course,
entitled
trial.”
be
to a new
appellant
623.)
(243 Ind. at
*5
in a
on
appellant
been convicted
If
had
sufficient
previous
however,
of some
was,
unfair because
trial which
acquittal
an
denied
error,
not
been
procedural
he would
have
been
entitled,
would have
constitutionally
but
he was
to which
constitutionally entitled.
fair
to which he
denied a
trial
right
circumstances,
to an
he would have no
Under such
merely
acquittal,
appellate (or trial) court directed
but
to
trial,
say
which is
a new trial.
If he asked
a
a fair
appellate
convinced either the trial court or an
new trial and
trial,
had
had a fair
it would be no violation
court that he
not
right against
jeopardy
try
double
him a second time.
of his
If, however,
request
His
would be a waiver.
he demands a
acquittal
court directed
but fails to show that the trial evidence
guilt
insufficient,
request
denied,
of his
should be
even
though
may
trial
show
court errors denied him a
appellate
fair trial.
an
Whether
court can
grant
express
new
trial conditioned
an
waiver of double
jeopardy,
general
or can infer a
request
waiver from a
relief,
specific request
trial,
absent a
questions
for a new
are
appropriate
whose answers must await the
case.
Reported at
Note. — Airlines, H. Thomas Redmond v. United Inc. August 18, Rehearing September 18, 2-774A159. Filed [No. denied 1975. Transfer denied March 1976.]