*1 only charged. This Court held that one crime was The habit- ual criminal statute did not merely create a new defense. It prescribed punishment. increased Quash
The Motion to should have been sustained because duplicity. The cause is reversed and remanded to the trial grant court with appellant’s instructions to Motion for a New Quash. Trial and to sustain the Motion to Arterburn, Mote, JJ., Hunter and concur.
Lewis,
J.,C.
concurs in result.
Reported in
Walker Indiana. v. 30,838. February 7, 1968.] Filed
[No. *2 Dixon, Wynelcen Smith, Blume, & Ralph Blume, Neiter, R. Wayne, appellant. for of Fort McFadden, Douglas Attorney Dillon, General, and
John J. Attorney General, appellee. Deputy for Walker, appellant, (Speck) James J. The Jackson, (Receiving charged by crime of “Theft with the affidavit Omitting sig- heading, parts Property).” formal and Stolen natures, reads as follows: the affidavit duly says: “Undersigned being sworn, upon oath, That day July A.D., County 27th of at the or about the
on of Allen and in Indiana, Defendant, the State of said James unlawfully and there (Speck) (sic) did then committed Walker property theft of the of Mens crime of Chatham’s Cottage Avenue, Chicago, Illinois, Wear, Grove unlawfully feloniously knowingly, and con- obtained that trol Twenty property, (21) men’s to one over stolen wit: (3) jackets; suits; sport (4) Three men’s men’s leather Four Fifty Eight value of Nineteen Hundred coats Ninety ($1958.95). said James Five Cents Dollars and knowing property Walker, another, had been (Speck) said Dof- and Robert Bernard Wilson to wit: stolen intending deprive (Speck) James Walker said ford. the of the said and benefit of the use permanently owner contrary in such being the statute the form of property, provided.” and made case charge To the above filed a “Verified Plea Abatement,” omitting heading, sig- which parts formal natures, reads as follows: being defendant, Walker, “Comes now James
duly upon deposes says: oath, sworn his 1. That he is the defendant in the above numbered cause of action. prior filing 2. That of the affidavit in the above action, numbered immunity cause he was prosecution upon cooperate the condition that he investigation being conducted Detective Bureau Wayne Department. the Fort Police promise 3. That said was made members Wayne the Detective Bureau of the Depart- Fort Police acting capacity ment in their as officers. 4. That cooperate defendant did with said in all officers respects during investigation. the said WHEREFORE, prays prosecution defendant that this abated, and all proper prem- further and relief in the *3 ises.” The State of Indiana filed an plea answer to the in abate- answer, omitting ment. Such heading, parts sig- formal and nature, reads as follows: “Comes now the State of Indiana Helmke, Walter P. Prosecuting Attorney for the 38th Circuit, Judicial and for answer to defendant’s Verified alleges Plea In Abatement says:
and allegation 1. it That the admits contained in rhetorical paragraph one. allegations 2. That it denies the contained in rhetorical paragraphs 2, 3 and 4. WHEREFORE, State prays of Indiana that defendant’s Verified Plea in Abatement be denied.” Thereafter, day on the 3rd December, of 1964, hearing after argument having of counsel and taken the same under ad- visement, Special Judge the appellant’s plea denied in abate- ment. arraignment 14, 1964, appellant waived
On December theft, guilty plea not as the offense and entered a charged in affidavit. day April, came
Thereafter, 6th the cause on the Judge, Special without the intervention for trial before jury. of Indiana introduced its evidence of a The State appellant conclusion of the State’s evidence rested. At the finding guilty, upon which the of not moved the court for ruling. his evi- introduced its court reserved arguments heard of counsel and The court dence rested. under advisemen. took the matter Judge April 26, Special found the On charged guilty affidavit. theft, as in the May 1965, appellant New filed his Motion for Trial On grounds: following alleging three therein the finding guilty on “1. erred in defendant That Court ruling upon April 26, defendant’s mo- without first finding guilty of State’s of not made at the close tion for a case. contrary finding is law.
2. That finding evi- is sustained sufficient 3. That dence.” judgment 2, 1965, im- was rendered and sentence
On June posed as follows: is, adjudged therefore, ordered, and decreed “It guilty (Speck) Walker, defendant, is James that the Court charged Theft, affidavit, and that as the offense of
of he is mitted hereby com- years age, he be and he and that custody the Indi- control of Warden of year, period (1) less one of not than ana nor more Prison (10) years, fined in the ten and that he than *4 Fifty Dollars, ($150.00) that and that Hundred penal sum of One years, (5) period five taxed.” for a of he be disfranchised satisfy herein pay the costs 1965, appellant’s motion for trial was sub- new June having argument court heard to the court. mitted being duly premises, thereon and advised in the over- counsel ruling portion A reads ruled the same. such as follows: ruling Specification on reference to the Court’s “With trial, ruling said is of defendant’s motion on the new based following: object reserving the Court That defendant did not ruling finding guilty; on for a its defendant’s motion of not proceeded that the defendant the with introduction of his evidence; proceeded argument that defense counsel with insisting ruling; upon a that defendant without did object being the case taken under advisement to with- motion; ruling out a sist said that the on defendant did not in- upon ruling any prior at time to submission of Court; accordingly the cause for decision objection any defendant has waived Court failure of to ruling on his motion rule said and the of said merged judgment motion of the Court.” The defendant indicated his appeal, intention to and the was, by appeal Court, bond ($2,000.- set at two thousand 00) dollars. Assignment
Appellant’s specifica- Errors contains two tions, as follows: overruling appellant’s “1. The Court erred in Motion
for a new trial. 2. The violating appellant’s Court in erred consti- rights tutional under the Sixth and Fourteenth Amend- ments the Constitution of the United States that cer- tain in into statements made actions taken to and interrogating view officers him were admitted against appellant, evidence said statements and having actions been made at a time when did not right have the benefit of nor waived his to counsel.” A brief summation of the evidence adduced in this cause clothing indicates Chicago, Illinois, that a store in was robbed July 26, 1964, by approxi- four men. The robbers took mately thirty suits, coats, shirts, five leather dozen two sport robbery coats and reported cash. $50.00 *5 Chicago Chicago day. police police
the the same Two went July 1964, investigate Wayne, to the to Fort Indiana on clothing robbery of the store. Wayne police appellant police the come to
The Fort asked to July 31, police headquarters on that on 1964. At the station investigating police they date was told the that were he night they robbery previous liquor on the that had store and acquainted persons with the who information that he Chicago they police The told him that the store. had robbed in motel he visited the robbers outside of information had staying. they appellant police told the were The town where guns he out to the motel and had observed some had been clothing. Appellant police purchased told the he had some they police particu- The told him were not suits from them. suits, they larly but wanted the robbers and interested appellant’s cooperation. asked the Wayne Sergeant Police the Fort Chambers of Detective during the conversation on Department testified that they evening appellant July 31, he were told testi- had Chambers in the fact that he the suits. interested he was he made that statement that he understood when fied prosecution appellant promising there would no gave they information were buying he them the the suits if after. appel- clearly appears herein that the from the evidence
It by police immunity prosecution from lant was he had and assist return the suits still if he would officers investigation. in the them testi- appellant his own behalf and the stand took July Wayne the Fort Police Station
fied that he went Appellant introduced testified he had been 1964. edge Motel on the Howard Johnson at men who were purchased suits He some city them there. had visited that testified them. He coats from leather assist prosecution if he would him offered appellant investigation. testified that them police. three suits to took Wayne Sergeant Hinsey the Fort Police Leo
Detective charging Department on a warrant arrested making approximately the arrest at theft. After him with August 7, Detec- Lieutenant Johnson and p.m. on 6:30 Captain Hinsey the office of the took tive interrogated appellant Appel- They time. at Detectives. *6 rights his constitutional extent advised of lant was attorney anything he contact an and also that he could that against Appellant him in then court. asked said could be used telephone, made he was allowed to do so. He to use attorney an contact his who was numerous calls in effort to evening. appellant After the was unable to contact for the out interrogation attorney appellant was continued. The his bought twenty suits, long jackets, two leather he had said jackets, sport coats, slipover two leather one three short Burroughs adding machine from Dofford Mr. sweater approximately July 27, noon at at and Mr. Wilson paid Motel on East 30. He said he Johnson had the Howard and that he had sold them. He said for the suits $300.00 long suits, apiece got apiece for the for the $25.00 $20.00 jackets. apiece jackets for the short leather leather $20.00 given away sport coats, slipover two sweater He had Burroughs adding machine. and the judicial
Appellant contends that the extra statements and appellant admitted into evidence actions of the were induced immunity prosecution; promise from by police and were meaning undue influence made under within the therefore 239, p. 584, being ch. 9-1607 Burns’ Acts § § follows: Repl., reads as which inducement, of a defendant made under confession “The may given circumstances, evidence all
with him, except under the against produced but to when made influence of fear by influence; intimidation or undue threats or made under inducement is not sufficient a confession corroborating without a conviction evidence.” warrant Appellant contends the record in this cause is devoid of independent, corroborating direct or inferential evidence. questions Assign- appellant are above raised in his overruling ment of Error No. that “The Court erred in appellant’s grounds Motion for a new trial.” The of said finding contrary motion are: “2. That the to law. 3. That finding is not sustained sufficient evidence.” question There can be no that the was prosecution. testimony Ray- of Officer present Captain Schmeding mond who Chambers when talked with is as follows: “Q. you Isn’t it a fact that at that that time told the defendant they were not interested in the fact that he had
the suits? That
A. is correct. Q. You testified oath, once before under at the time of hearing case, on the Plea in Abatement in this you Sergeant? not, did A. I did.
Q. your At that time was testimony it not you that under- you when stood made that you statement that were promising the defendant pros- there would be no buying gave ecution for the suits if you *7 he the infor- you mation that were after? my interpretation, A. That was right.” that’s Captain Schmeding On cross examination testified concern- ing Raymond the conversation he Chambers had with the appellant as follows: any
“A. I told him if I found he had merchandise that was stolen, brought over and above what in, he would prosecuted. be Q. sufficient, you. That’s Captain, you thank would now change your you answer to admit that did talk to him charges brought about whether or not result would be as a purchase? this A. Yes.”
559 they brought three suits were When only exhibits at the trial. had and were all he is not sufficient under inducement made A confession corroborating evidence. Acts conviction without warrant p. 584, 169, 239, Burns’ 1956 Re 1905, 9-1607 ch. § § 55, 155 (1927), 199 Ind. placement; Evans State v. E. 203. N. prosecution made
Promises accused, inducement within constitute officials supra. meaning Burns’, of 9-1607 See: of that term § 564; 2d, Evidence, Annotation 7 §§563, 29 Am. Jur. A.L.R., 419. judicial contends the extra statements also erroneously confession were which constituted a
and actions prior into evidence establishment admitted corpus delicti. corpus proof specific delicti means
Proof charged actually has been committed someone at .crime alleged. place (1952), Dennis v. State
time and
230
210,
650;
(1950),
Parker
102 N. E. 2d
v. State
Ind.
1,
556,
88 N. E. 2d
Extra upheld and a conviction will until mitted in evidence corpus delicti been unless the has established proof independent probative clear the admissions. 591, Hayden (1964), 245 State Ind. 199 N. E. 2d v. 75, 329; Holding (1963), v. State 244 Ind. 201 E. 2d N. 660; (1952), 2d Dennis v. State 230 Ind. 190 N. E. 650; (1950), Parker 228 Ind. 88 N. E. 2d E. 2d
N. v. 442. E. 2d N. appellee contends there was sufficient evidence of the appellant’s confession, corpus delicti to corroborate argument says: support of that testimony owner, Miller, store Morton as of the “The *8 coupled robbery taken and merchandise with that
560 Chicago seeing of the Police officer to some of stolen such Appellant’s possession police merchandise in station night July 31, on the constitute more than evi- sufficient theft, charged, dence that the crime as had been com-
mitted.” bringing theory counters this on the that his police request the suits station at the of the immediately after he had been he would prosecuted brought voluntary if he them in was confes- by police promises sion induced and as such could not be used corpus to establish the delicti.
The record discloses that Mr. Miller testified he was the Chicago, Illinois; owner Chatham’s Mens Wear in that on July 26, 1964, robbery being store, occurred at his com- mitted four colored men while the store was closed for inventory. present, employees He was not but four of his taking inventory. were there He testified to the loss only independent merchandise. This appel- is the evidence judicial lant’s extra admissions in the case. With reference to testimony concerning Mr. Miller’s robbery, clearly it is probative value, being not of hearsay. best, At the witness’s testimony by robbery inference indicates that a occurred at Chicago, Illinois, his store in July 26, 1964, nothing more, if that. McCoy
This Court in (1960), 241 Ind. v. 43, 47, 170 N. E. 2d and Wertheimer (1930), v. State 572, 577, Ind. receiving 169 N. E. has held that property knowing stolen it to have been stolen an “is independent, merely substative offense and not an particular thing accessorial one. denounced the stat- receiving goods ute is the knowingly.” of stolen holdings, In view of manifestly these it is clear that cir cumstantial robbery evidence of a does not establish corpus receiving delicti of property, stolen know ing it to have been stolen. *9 question no that the extra at there can be case bar
In the amounting to a confession judicial statements actions and by immunity promise appellant the by were obtained clearly appellant appears and It that the at prosecution. good rep- police in acted the the officers faith least some thereby obtained some of made. The officers so resentations having by in his Mr. Miller as been merchandise identified the thereby subject provisions became The confession store. supra, until and 9-1607, and became inadmissible unless of § by probative corpus proof delicti established clear was equally appellant’s value, independent admissions. It is wholly to estab- in the case at bar state failed that clear corpus delicti. lish presented questions
Appellant properly has and other saved consideration, in result but view we must our for matter, not, not, pass upon do in we need and those this reach questions. be, hereby is, reversed must and the same and
The cause grant appel- to the trial court with instructions to remanded for motion a new trial. lant’s JJ., Mote,
Lewis, concur. J. Hunter and C. J., opinion. Arterburn, with dissents
Dissenting Opinion I that do not be- dissent the reason J. I Arterburn, majority pertinent in facts are set forth all the lieve Schmeding Captain opinion. appears me of the Fort It to robbery talking appellant Wayne police, about the when to bring he in the stolen question, told him that if did all him, clothing lying prose- or he would be was suits brought that he turns out from the facts case cuted. It twenty suits, only more taken while than were three him, In addition there of these resold him. and seventeen jackets, long jackets, two three short leather two leather were adding coats, slipover Burroughs sport sweater, one acquired by appellant. appellant machine himself testified as follows: Schmeding “Capt. told me if he I some more found out had suits, him, lying I something, that was or those about say
suits, would be about those suits.” prosecuted, he didn’t I wouldn’t he I said prosecuted lying if found out I to him The issue as to whether or not the officers on certain conditions and whether or complied not the conditions, question with those of fact to be determined the trial court. The trial court this, right did testimony and we have no to select the we wish reject to believe and apparently that which the trial court *10 accepted.
Finally, point out authority I there is no under gives police right I can find law that which officials prosecuting bind the State crimes. This is a matter prosecuting under the otherwise, law officials. To hold dangerous my opinion, precedent places authority hands of certain officials unwarranted power.
I feel the decision of the trial court should be affirmed.
Reported in
[No. 1968.]