*1
evidence,
only
consider
most favor-
but will
evidence
may
State,
able to the
reasonable inferences that
jury is
drawn
to determine
therefrom
whether
returning
guilty
warranted in
Cockrum v. State
verdict.
In second we finding contrary find was not to law. Burns’ Indiana Statutes, Anno., (1956 Repl., Suppl.), 1968 Cum. Pkt. indeed, any (a), person 10-3520 makes it unlawful possession drugs. to be in the unathorized of narcotic clearly The evidence established the fact illegal possession. Consequently, such can was in we see no uphold appellant’s assigned second reason error. properly presented
Since has to this Court court, would error that warrant us to reverse the lower we affirm.
Arterburn, Hunter, JJ., and DeBruler Jackson concur. Reported in 241 2d N. E. 138. Note. —
Robbins Indiana. Rehearing [No. 1267S136. Filed October 1968. denied January 9, 1969.] *2 Graf, Indianapolis, appellant. Frederick J. of Bennett, Attorney General, Dillon, and Richard V. John J. General, Attorney appellee. Deputy charged by Appellant was indictment in three Hunter, J. statutory separate kidnapping, rape, count with and commis- deadly felony weapon. with sion of while armed The rele- provide as statutes follows: Indiana vant (1956 Repl.) “Kidnapping.— 10-2901 Anno. Stat. § forcibly fraudulently kidnaps, or or carries off or Whoever decoys any state, or im- from within this or arrests prisons any having per- person, such with the intention of state, way any place (a) son it be in within this unless carried pursuance this state or of the United of the laws of conviction, States, guilty and, kidnapping, shall is be during imprisoned prison life.” the state (1956 “Rape Penalty.— Repl.) Ind. Whoever has 10-4201 Anno. Stat. § — knowledge forcibly against of a woman carnal will, age (16) her or of a female child under the of sixteen years; imprisoned guilty rape, ... is and on conviction shall (2) years not less nor more than than two twenty-one (21) years . . .” (1968 Supp.). Ind. Anno. Stat. or 10-4709 “Commission deadly attempt to commit crime while armed with being years weapon. Any person who over sixteen — age, attempts commits or commit either the crime rape, robbery, pistol, robbery, theft while armed with bank or any gun revolver, rifle, shotgun, other machine or dangerous deadly weapon, or or . . shall be firearm guilty felony separate of a the crimes above in addition to upon imprisoned named and conviction shall be for a *3 years period (10) determinate of not less ten more than nor twenty years, Provided, than That such court to be fixed the court: provide in the shall have judgment imprisonment that such term of not run shall concurrently adjudged imprisonment may be with but for either of the crimes first above enumerated beginning imprisonment such term of shall served at imprisonment adjudged expiration for either of first said named crimes.” jury appellant guilty
The found on all three The counts. granted appellant’s judg- ''.rial court motion for an arrest of (statutory rape). Appellant Two nent Count was sen- the Indiana tenced to State Prison for life on Count One (kidnapping) Reformatory and to the Indiana State for a period years (commis- determinate of fifteen on Count Three felony deadly weapon). of a while armed with a sion may The evidence most favorable to the state be sum- M., morning, marized follows. At about 1:00 A. Christmas prosecutrix, fifteen-year-old female, an unmarried alone, operating an automobile on route a was friend’s unintentionally pick up purse left she had home to a which evening. stopped prosecutrix for a The in the there earlier signal man, trial as a identified at the whom she traffic where attempted alongside in another car and appellant, drove proceeded engage she in conversation. As her eventually her intersection, her and ran man followed prosecutrix, pointed pistol entered He a at car off the road. according nearby alley. There, car, and drove it to her clothing ripped to shoot prosecutrix, her and threatened he the car and drove to run. He then restarted her if she tried Indianapolis. driving car," side of While he to the west cigarette, pulled hair, smoke her forced her to threatened to face, up” her her and struck several times with the “mess again stopping factory, pistol. the car behind a he After pistol prosecutrix with the and ordered her to struck the prosecutrix twice, hitting raped the each time He then disrobe. stating that he wished to see her suffer. she her and When satisfy by fellatio, further sexual desires he refused to laughing mercy. times, pleas her shot her four different believing victim, Then, apparently that he had killed his car left the of his scene crime. re-entered the prosecutrix able to walk across a field and ob- nearby hospital help prosecutrix at a home. At the tained gave description police of the car in which she had originally her assailant. The car was located near the seen originally prosecutrix had been abducted. from which DeMolay to have been stolen. A member- This car was found in the front seat of the The card had ship card was found car. one Jan Buris but had been issued to transferred been through persons appellant. several was traced Police appellant’s residence and found the car which visited had *4 prosecutrix parked originally nearby. the been driven days committed, the crimes had been ap- after Four the brought hospital prosecutrix to the where the pellant was During interroga- him her assailant. positively identified having rights been advised of his tion, constitutional after thereto, signed admitted having the a waiver shooting prosecutrix. reversi- trial court committed
Appellant contends that prosecution permitted to introduce when it ble error inflamatory (sic) “mug appellant, other of “certain shot” piece into evidence pictures” of “bone-like substance” and a Although in states that his brief at the trial. objected “bone-like into of the substance” to introduction expressly do so: evidence, indicates that he did not the record object cigarette we won’t object butts and won’t to the “We spent object piece there, to the bullet we will but actually, found it know who lieutenant doesn’t because the added). (emphasis he didn’t at least.” object the introduction he failed to admits that during question the trial but here in evidence of the other danger” personal “the trial requests this court to consider “protesting him of too often.” subjective appellant’s motives not consider
This court can
appel
evidence;
propriety
objecting
appeal.
strategy
It
is not in issue on this
trial
lant’s
timely objection is made
that unless a
well settled
is
court,
admissibility
in
trial
of evidence
appeal.
will not be
not reserved and
considered
question is
442;
N. E.
White v.
Crawford
(1891),
318 there was a fatal variance between contends testimony the indictment and the evidence in that of the that, victim shows while she was en route to 2500 block of Avenue, North Sharon she had not arrived at that address when her car was off forced her street assailant: I and I “A. turned down Medford I because had missed Sharon following didn’t know if was me or not. Q. following you? And was there a car Yes, A. he was.
Q. right. All just going I A. And was to walk into this Robert Brown’s house I like lived there. Q. Now, where did Robert Brown live in what hundred
block? Twenty-five A. Well, hundred block of Sharon. I go Sharon, turned to ford and when back on I turned east off of Med- I did, he come in front of me and run
me off the road.”
The state maintains that this variance between the indictment
and the
evidence was not
fatal
was not sur-
prised,
prevented
misled nor
preparing
his defense.
Madison
(1955),
v. State
517,
234 Ind.
Ind. Anno. Repl.) Stat. 9-1127 “No indictment or invalid, affidavit shall be deemed nor shall the quashed, same be set aside or trial, nor shall the judgment manner affected for proceeding stayed, or other any be arrested or in any following of the defects: allegation . . Second. For the . want of an of the time or place any fact, material when the venue and time have once been stated in the indictment or affidavit. . Tenth. For imperfection . other defect or which does prejudice not defendant rights tend of the substantial of the upon the merits.” (1955),
In State v. Carrier 235 Ind. N. E. 2d an this court held that indictment for murder was sufficient against quash though a motion even the indictment did to have person claimed allege the death court stated: been murdered. The place in necessary allege the exact “It never been has The occurred. county or death the fatal blow where always held to county,’ been has ‘at and in said words charging Peats State allegation in an offense. sufficient v. 270; Hawkins State 560, 12 2d (1938), (1894), E. N. Coger 419; v. 630, 36 E. N. 624; *6 ,ch. 191, p. 169, 1905, 332, Acts E. 147 N. § 196 Ind. Ind. Replacement.” 235 being 9-1126, 584, 1942 Burns’ § at 460. State, supra, Madison this court stated:
In juris- most “(I)t in this state and settled seems be well determining material- accepted rule in the dictions that the ity be of such substantial in proceeding it must is that a criminal a variance in of mislead the accused character as to maintaining or the preparing his defense variance and jeopardy degree likely place in him second is of such for the same a also, 32 Ind. 547. See offense.” 234 L. 267-273. J. charges language that plain concise The indictment in and away forcibly carry “feloniously and the did City Wright, the kidnap . from a within . . Ellen County Indianapolis, in of Marion and the allegation This . .” was sufficient under Indiana. . Repl.) (1958 specific 9-1126. The Ind. Anno. Stat. location surplusage. The the is has not in indictment shown prejudiced preparing or in mislead or that was maintain therefore, defense; hold ing that we variance is not grounds reversing appellant’s not constitute and did fatal One. on Count conviction charges appellant:
Count indictment that carnally unlawfully feloniously ravish and “did . . . age (the prosecutrix), know a female child under age years, years, (15) to wit: of the of fifteen sixteen she Robbins, being the said . .” not the wife of James . .. charges appellant: Count 3 carnally unlawfully feloniously . . . “did ravish and age (the prosecutrix)-, know a female child under (15) years, (16) years, age sixteen of fifteen to wit: of the Robbins, being she . . . said James James not the wife of the said Robbins, armed with then and there deadly weapon, pistol to wit: a . . .” jury guilty court has found on This both counts. charged separate held that where in crime is two identical counts, only being difference the de one charged additionally being fendant is with armed with deadly weapon, judgment only should be entered for greater upon offense both counts. Carter v. State E. 2d filed N. 273. a mo judgment court, tion arrest of on Count 2 with trial following based reasons: “1. That Count two of the indictment is covered Count
three indictment. penalty That Two, Rape 2. for Count is two to twenty-one years indeterminate the State Prison: That three Count which includes the Rape, crime of carries a *7 years penalty 20 prison, of 10 to determinate sentence. jury in 3. That the the immediate case found the de- guilty 1, Kidnap, fendant Count 2, Rape, Count 3, felony armed, Count Commission of a while namely rape.” Appellant filed a support memorandum in motion, of this citing State, supra. Carter v.
' (1956 Ind. Repl.) Anno. 9-2001 Stat. allows the court to arrest, grant judgment a motion in specified for two causes: grand jury “First. That which found the indictment legal authority inquire no had charged, into the offense for the reason that juris- such offense was not within the diction the court. That the facts Second. stated in or indictment affidavit public do no a constitute offense.” apparent It is that neither these authorizes the court causes grant judgment the motion in arrest of where defendant guilty separate properly
is found on two counts each charging way Rather, the identical to cor crime. comply rect this situation so as to with the rule in grant State, supra, Carter v. is to to amend the a motion Limeberry 622, (1945), verdict. v. State N. 2d E. 697.
However, grant- appellant’s trial court did motion judgment arrest of as to count two in the Appel case at bar. lant now contends that the trial re court committed rendering judgment versible error in on count three. argues Appellant judgment to arrest on count two, necessarily the trial court must have found defect regards count, that, indictment since sub stantially charged three, identical crime is in count appellant’s original count must also be defective. But motion defect, was based on no such and we find no such defect in judgment either count. It not error to render on count According State, three. Carter supra, it would have been reversible error to have been convicted on both counts two grant and three. appellant’s While it was error to motion judgment amending arrest of instead of verdict, this error certainly prejudice did not not, and does there fore, grounds constitute for a reversal.
Finally, appellant arrest, interrogation contends that his comport procedure and trial did not with the fair required by the Fourteenth Amendment he because was not ac during corded assistance of a early counsel interrogation. pre-trial custodial Mi cites v. Arizona v. Cali (1966), randa 384 U. S. Anders support 386 U. S. his contention that fornia attorney present during had to have an interro gation. agree, but recognize We both of these decisions also *8 right knowingly rule: second that this can be intelligently by a proceeding. waived defendant in a criminal his home arrested at was that
The record shows pursuant a valid 29, 1966, to at P. M. 8:00 on December home General his He was taken warrant. arrest identi- view him for Hospital victim in order “could by being positively identified purposes.” After fication in the office the homicide prosecutrix, appellant taken to was Building an City-County and from there wing police building. Police Officer interrogation in the same room Dehn testified: Leonard F. interrogation room, he taken into an time was “At rights, I him to make read them to him of I advised sure yes, understood, understood, if he he said asked sign.” gave form to I him a
then signed was admitted into evidence The form which as follows: reads DEPARTMENT POLICE “INDIANAPOLIS Department as follows: Indianapolis advises Police right a You have remain silent. 1. against say you you in Anything can be used
2. which court. right lawyer present now. to have a
3. You have a you lawyer, money a retain you If do not have 4. by you appointed court. one to have have the fully. and understand it I wish to I read above have lawyer. voluntary I do not statement and want make anyone by force, promises have been used threats or No any way sign sign this, I this statement to make me rights having the above before been advised of of me. questions have been asked Robbins James /s/ day Signed Dec., this 29 P. M. at 9:45 o’clock City Indianapolis, Hqts. Police Indiana.” prior signing to his statement made No admitted into evidence. offered or form was lawyer complains appear- that no made court eight days forty Capias after until his arrest. him ance February 10, 1967, to the sheriff until not issued *9 February appellant’s 15, 1967, enter a court on counsel did arraignment plea appearance enter a to waive not guilty. appearance date, no was made or Prior to this court by appellant called for counsel. either or his appellant any way deprived We do not see that was in right his to counsel in the case at bar. appellant
The has failed to demonstrate that the trial court Therefore, committed judgment reversible error. of the trial court should be affirmed.
Judgment affirmed.
Lewis, C.J., Arterburn, DeBruler, Jackson, JJ. concur.
ON PETITION FOR REHEARING
only
J. The
appellant’s petition
issue in the
for
Hunter,
rehearing
fully
that was not
considered
and discussed
original opinion
alleged
relates to the
denial to the accused of
right
every
his
stage
to counsel
proceedings.
at
When
appellant
was arrested
on December
he was
taken from
Hospital
his home to
being
General
before
taken
police station,
to the
in order that the victim
view him
“could
purposes.”
appellant
identification
The
now contends that
right
he was denied a
to counsel when this identification was
hospital by
prosecutrix.
made at
Recent decisions
have indicated
right
that an accused does have a
to counsel at
parade”
an
up.”
“identification
or “show
United States v.
(1967),
218;
Wade
388 U. S.
Gilbert California
We to do need determine whether the Wade or Gilbert apply decisions would to the of this case as we feel the facts appellant objection. (1) has waived this bar, In the case at appellant objection counsel made no testimony to at relating by the trial to his prosecutrix identification either hospital. (2) or only objection trial at the made by in his motion for new trial which even men- follows; right tions to counsel reads objections defense permitting over erred in “That the court the introduction de- stated that paper that piece rights silence counsel told of his fendant was by allegedly signed the defendant.” which was evidence into objection only introduction relates This allege even appellant and does not signed by the of a “waiver” right counsel. actually denied appeal, court assignment presented to this errors In the he was only the effect objection made not accorded he “was was that denied his counsel *10 early pre-trial during legal the . . of counsel assistance ap is made police interrogations”; mention no custodial prosecutrix pellant right when the denied his counsel was to argument Finally, hospital. the him even at the identified only relating appellant’s in of counsel deals brief to the denial interrogation” appellant “early pre-trial of with the custodial by prosecu hospital not the with his identification at the appellant can be Applying precedents, the settled trix. well argument these at one of deemed have waived this to making timely objec by stages proceeding the not four of 442; 193, (1955), 125 N. 2d White v. E. tion. State 234 Ind. 410; May 207, (1924), 2d Poehler State 194 142 N. E. Ind. 88, 701; (1894), v. v. State E. Steam 39 N. (1951), 17, 101 2d do not believe it a N. E. 67. We technicality require expressly mere the to specifically type objection prior petition raise this of to his rehearing. extraordinary requirement It would be an to com pel anticipate this court or the trial court all decide questions might possible of the law which occur in criminal timely proceeding objections by parties in the absence of raising specifically the issues to be decided. We hold that any objections may at bar in case has waived regards admissibility have had as of evidence that relates hospital by prosecutrix to his identification at the whether or not such identification was made of presence counsel. appellant’s passing,
In we on wish to note and make brief comment paragraphs appellant’s petition another of the in the rehearing. change by Pursuant to a recent rule made court, argument granted appel this oral is to an 2-21, except lant at the court’s discretion. Rule April 22, bar, amended on 1968. In case process contends that the court denied him due of law deciding argument. appeal be without oral It should re appeal membered that is not a matter itself necessity. Constitutional District Columbia v. Clawans that, appeal U. it is true an S. 617. While when accused, is afforded an certain essentials attach to the appellate procedure, required it has never been that one such argument. experience essential be oral It has been the of this argument helpful court that proved only oral has or decisive complex adequately when the issues were too covered in a written brief. In the instant case we feel the briefs ade quately completely articulate the issues involved appeal.
Rehearing denied. Lewis, C.J. petition concurred in this denial for rehear- ing Monday, on prior December which expiration term this court. *11 Jackson,
Arterburn
DeBruler,
JJ. concur.
J.
concurs
result.
Reported in
Note. —
Hanrahan v. State Indiana. 30, 1968.] Filed
[No. 1067S118. October