Thomason v. State
263 N.E.2d 725
Ind.
1970
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THOMASON v. STATE OF INDIANA.

No. 370S65

Supreme Court of Indiana

November 19, 1970

Rehearing denied December 30, 1970.

263 N. E. 2d 544

in а state psychiatric hospital, and that he had attempted suicide while in jail was admissible even though the appellаnt did not enter a plea of insanity. Such evidence is admissible as tending to prove that the appellant was suffering from a mental condition, not amounting to legal insanity, which might have affected his ability to form the requisite criminal intent. In addition, such evidence is competent in Indiana, in the absence of a plea of insanity, as “matter in mitigation“.

. See Comment Note, 22 ALR 3d 1228. I wоuld, therefore, vote to order a new trial.

Jackson, J., concurs.

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Palmer K. Ward, of Indianapolis, for appellant.

Theodore L. Sendak, Attorney General, Robert A. Zaban, Deputy Attorney Genеral, for appellee.

ARTERBURN, J. - This is an appeal from the Marion Criminal Court, Division 2, where appellant was found guilty as chаrged ‍‌‌​​‌‌‌​‌​‌​‌​‌‌‌​‌​‌​​​​‌‌‌​​​‌‌​​​​​​​‌‌​‌‌‌‌‌‍of robbery. Trial by jury having been waived, the appellant and two others were tried before Judge Saul I. Rabb.

Testimony at the trial indicates that shortly after 3:00 a.m. on July 27, 1969, Gary Underwood was working as an attendant at the United Oil Service filling station at 5901 Bluff Road in Mаrion County, Indiana, when he observed a car coming down the street without any lights on. The car pulled into the station and two girls and a man got out. While one of the girls used the restroom, the man asked Underwood how the business was going. They left and about five minutеs later they returned from the opposite direction, passed the filling station, stopped the car, and then walked back to the station.

The man who was at the filling station just a few minutes before was now wearing a handkerchief over his facе. He pulled a gun out of his pocket, and as Underwood started giving money to him, the same man marched Underwood to the back of the filling station and took the money that he had in his pocket. Underwood was told that he would be shot if he moved.

Immediаtely after the robbery, a friend of Gary Underwood, Victor Paynter, arrived on the scene and he and Underwood pursued thе automobile used to escape. Underwood got out of the car to call the police, while Paynter cоntinued to follow the escape car. The pursued automobile, however, soon hit a median and ended up in a ditch.

Appellant contends on this appeal that the judgment of the trial court is not sustained ‍‌‌​​‌‌‌​‌​‌​‌​‌‌‌​‌​‌​​​​‌‌‌​​​‌‌​​​​​​​‌‌​‌‌‌‌‌‍by sufficient evidence of identifiсation as to the appellant Thomason and that there is no evidence in the record to prove the allegation made in the affidavit that the money was in fact the property of “United Oil Service, Inc., a corporation.”

Wе find appellant‘s first contention without merit. The courtroom identification of the defendants at the trial consisted of the following testimony by Gary Underwood:

“Q. Are any of those people in the courtroom today?

“A. Yes, they are.

“Q. And, would you point them out to the Court, please, describe what they‘re wearing today?

“A. Well, the man has the blue jail uniform on.

“Q. At the end of counsel table there?

“A. Yes.

“Q. Alright, anybody else over there?

“A. The boy in between the two men with suits on.

“Q. Wearing blue coveralls, also?

“A. Yes.

“Q. Anybody else?

“A. The lady with the brown with the white.

“Q. Sitting at counsel table also?

“A. Yes.”

Also, on cross examination, Underwood testified as follows:

“A. She-they were all four together and then he cut around like this on this side of the pumps and the other three stood ‍‌‌​​‌‌‌​‌​‌​‌​‌‌‌​‌​‌​​​​‌‌‌​​​‌‌​​​​​​​‌‌​‌‌‌‌‌‍on the other side, and I walked toward him and started giving him the money and that‘s when he told me to turn around...

“THE COURT: Give the money to who?

“A. To the guy at the end of the table. Started giving him the money...”

The court knew who the defendants were since they stood before the court at the time they made their pleаs. The record further shows that defendant‘s trial attorney objected on behalf of his client although the above direct еxamination referred only to the man “at the end of counsel table there.” The judge sustained this objec-tion on behalf оf the defendant, who was the man “at the end of the table“, and overruled another objection made by counsel on behalf of that same man. Although the State undoubtedly could have and should have made a better identification, we think it was sufficient in this case to identify the defendant with the testimony.

We likewise find no merit in appellant‘s second contention that the judgment should be reversed because there is no evidence in the record to prove the allegation made in the affidаvit that the money was in fact the property of “United Oil Service, Inc., a corporation“. The affidavit also stated thаt the money was taken from the person of Gary Underwood and that he had lawful possession ‍‌‌​​‌‌‌​‌​‌​‌​‌‌‌​‌​‌​​​​‌‌‌​​​‌‌​​​​​​​‌‌​‌‌‌‌‌‍of this money. It was not contested that Gary Underwood had lawful possession of this money. At the trial, Underwood testified that the money belonged to his employer. We find that in this situation no further proof of ownership was necessary. Also, appellant has failed to show how he was prejudiced by this alleged error, and thus it would not be grounds for reversal anyway.

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Judgment affirmed.

Hunter, C.J., Givan and DeBruler, JJ., concur; Jackson, J., dissents with opinion.

DISSENTING OPINION

JACKSON, J.-I am unable to concur in the majority opinion herein and dissent thereto.

While we do not weigh the evidence on appeal we will review to determine whether or not the judgment is sustained by substantial evidence of probative value.

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In the case at bar the State‘s evidence is so carelessly presented that it seems to be lacking ‍‌‌​​‌‌‌​‌​‌​‌​‌‌‌​‌​‌​​​​‌‌‌​​​‌‌​​​​​​​‌‌​‌‌‌‌‌‍in sufficient evidence of probative value to sustain the judgment of conviction, The defendant-appellant was found guilty of the crimе of robbery, and as punishment drew a sentence of not less than ten (10) nor more than twenty-five (25) years in the Indiana State Prison. At thе very least he is entitled to be fairly tried and legally convicted. The record in this case is such that grave doubt exists as to the legality of his conviction.

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I am not impressed by the State‘s argument in favor of waiver. The State is required to prove the guilt оf the defendant beyond a reasonable doubt and its burden does not shift.

The affidavit charged, inter alia, the property tаken “was the property of United Oil Service, Inc., a corporation“. There is an old rule of law to the affect thаt if the affidavit or indictment contains averments in excess of the language necessary to properly charge thе offense, the State having voluntarily assumed that burden must sustain it. There is no evidence in the record as to the corporаte existence of United Oil Service, Inc., a corporation.

The judgment should be reversed and remanded with instructions to sustain the motion to correct errors.

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