Adams v. State

• Decision Date: 17 October 1946
• Docket Number: 28205.
• Citation: 69 N.E.2d 21,224 Ind. 472
• Parties: ADAMS v. STATE.
• Court: Indiana Supreme Court

69 N.E.2d 21

224 Ind. 472

ADAMS v. STATE.

No. 28205.

Supreme Court of Indiana

October 17, 1946

Appeal from Vanderburgh Circuit Court; Nat. H. Youngblood judge.

Menzies Lindsey, of Evansville, and J. Herbert Hartman, of Indianapolis, for appellant.

James A. Emmert, Atty. Gen., and Frank E. Coughlin, First Asst Atty. Gen., for appellee.

YOUNG Judge.

On the evening of June 16, 1945, a large grocery store in Evansville was robbed and $4,300 in United States currency, done up in described packages, was carried away. An affidavit was filed against the appellant, and a jury found him guilty of armed robbery and he was sentenced to 15 years imprisonment in the Indiana Reformatory.

Appellant asserts two grounds for reversal. The first is that the verdict is contrary to law because the jury found appellant guilty of a crime not embraced in the affidavit upon which he was tried.

The Indiana simple robbery statute reads as follows: 'Whoever takes from the person of another any article of value by violence or by putting in fear, is guilty of robbery, and on conviction shall be imprisoned not less than ten (10) years nor more than twenty-five (25) years, * * *.' § 10-4101 Burns' 1942 Replacement.

The armed robbery statute reads as follows: 'Any person who being over sixteen (16) years of age, commits or attempts to commit * * * the crime of * * * robbery, * * * while armed with a pistol, * * * or any other firearm or any dangerous or deadly weapon, * * * upon conviction shall be imprisoned for a determinate period of not less than ten (10) years nor more than twenty (20) years, to be fixed by the court: * * *.' § 10-4709, Burns' 1942 Replacement.

The affidavit upon which appellant was tried and convicted alleges that he 'unlawfully, feloniously and forcibly and by violence and putting Finas Heseman in fear did with the use of a deadly weapon, to-wit: a pistol, rob, take and steal from the possession of Finas Heseman lawful, current money of the United States of America amounting to forty-three Hundred Dollars ($4300.00), * * *.' Appellant takes the position that the affidavit charged only the offense of simple robbery, and not the offense of robbery while armed and that therefore the verdict that he was guilty of robbery while armed was contrary to law. Appellant bases his contention upon two grounds. The first is that the allegation that appellant committed the robbery 'with the use of a deadly weapon, to-wit: a pistol' is not sufficient to bring the charge within a statute which makes it an offense to commit 'robbery, * * * while armed with a pistol', and the second is the failure to allege in the affidavit that he was over 16 years of age. He argues that the constitution of Indiana (Article 1, § 13) guarantees that criminal accusations shall be pleaded so that every material fact constituting the offense is charged in direct and unmistakable terms so that the accused may know definitely what he has to meet. It seems to us that a charge that an accused committed robbery with the use of a pistol is not substantially different from a charge that he committed robbery while armed with a pistol. Also in this case it appears affirmatively from the record that the appellant was not misled. The record shows that 'the defendant being duly arraigned and required to plead, for plea says he is not guilty of armed robbery as charged in the affidavit herein and that he is 22 years of age.' This makes it clear that he knew that he was charged with armed robbery and his admission long before trial that he was over 16 years of age rendered harmless the failure to allege his age in the affidavit. By this plea and stipulation as to age the failure to state his age in the affidavit was cured and the fact that he was charged with robbery while armed was brought specifically to his attention in ample time to eliminate any prejudice that might have accrued to him by possible uncertainty in the affidavit as to which offense was intended.

The second error upon which appellant relies in this court, is with reference to the introduction in evidence of an automobile license list prepared by the secretary of state and distributed to county offices pursuant to statute. § 47-2624, Burns' 1933 Supp., provides that the department of motor vehicles shall prepare annually a complete official typewritten or printed list of the names and addresses of all persons to whom automobile licenses have been issued for the current calendar year, together with the registration numbers in numerical order and certain other information concerning the vehicle so registered, and the statute further provides that the department of motor vehicles shall distribute one copy of such list to each county sheriff in Indiana. In the trial of this case the sheriff of Vanderburgh County identified such a list for 1945 which he said had been furnished to him as sheriff by the secretary of state. Objection was made to this exhibit upon the ground that it was not properly certified and upon further ground that the exhibit was hearsay and not the best evidence of the facts shown by the list. It may well be argued that this exhibit was properly admitted as a public document or official statement. Wigmore on Evidence, 3d Ed., Vol. 5, § 1630 et seq.; 32 C.J.S., Evidence, §§ 626, 637, 643, pp. 477, 478 489, 506, 507; 20 Am.Jur., Evidence, § 931 et seq.; Steel v. Johnson, 1941, 9 Wash.2d 347, 115 P.2d 145; Gett v. Isaacson, 1923, 98 Conn. 539, 120 A. 156, 158; Laginsky v....