Armstrong v. State, 30656

• Decision Date: 18 September 1967
• Docket Number: No. 30656,30656
• Parties: Earl McKinley ARMSTRONG, Appellant, v. The STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 631

229 N.E.2d 631

248 Ind. 396

Earl McKinley ARMSTRONG, Appellant, v. The STATE of Indiana, Appellee.

No. 30656.

Supreme Court of Indiana.

Sept. 18, 1967.

William C. Erbecker, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Carl E. Van Dorn, Asst. Atty. Gen., Indianapolis, for appellee.

LEWIS, Judge.

This is an appeal from verdict by jury and judgment convicting the appellant of involuntary manslaughter. The indictment charging involuntary manslaughter, omitting the formal parts, reads as follows:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that

EARL McKINLEY ARMSTRONG RAY PERDUE

on or about the 22nd day of June, A.D. 1963, at and in the County of Marion and in the State of Indiana, did then and there unlawfully and feloniously, in a rude, insolent and angry manner, but involuntarily and without malice, kill one WILLIAM JESSE MONROE with their, said EARL McKINLEY, ARMSTRONG'S and RAY PERDUE'S fists, and then and there causing the head of the said WILLIAM JESSE MONROE to be thrown against a hard surface, thereby feloniously, but involuntarily, inflicting mortal wounds and injuries in and upon the said WILLIAM JESSE MONROE from which mortal wounds, the said WILLIAM JESSE MONROE then and there and thereby died; and the said mortal wounds and injuries and death of the said WILLIAM JESSE MONROE were proximately caused by and were the direct results of the aforementioned unlawful acts of the said EARL McKINLEY ARMSTRONG and RAY PERDUE, then and there being * * *.'

Appellant's sole assignment of error is the overruling of his motion for a new trial. The specifications assigned as error in the motion for new trial may be summarized as follows:

(1) Insufficiency of the evidence to support the verdict of the jury.

(2) Error at law in the refusal of the Trial Court to give appellant's tendered Instructions No. 1 through No. 6.

Appellant argues that only Instructions No. 1 and No. 3 were erroneously denied. He has omitted to argue Instructions No. 2, 4, 5, and 6, and such omitted instructions are, therefore, deemed waived. Supreme Court Rule 2--17(e), 1964, requires the instruction to be set out verbatim in the argument section of appellant's brief with the verbatim objections, if any, made thereto. Rule 2--17(f), 1964, states that errors assigned and causes for a new trial not treated as directed, shall be deemed to be waived. In considering the appellant's tendered Instructions No. 1 and No. 3, the appellee has properly pointed out that appellant failed to include in his brief, twenty-two instructions that were given by the Trial Court. Rule 2--17(d), 1964, requires appellant's brief to contain, in addition to the instructions reviewed, all the instructions given and tendered which have a bearing upon the question raised. This Rule has been interpreted in Bewley v. State (1966), Ind., 220 N.E.2d 612, thusly:

'* * * It therefore was incumbent upon the appellant to set forth any instructions having a bearing upon the tendered instructions refused, but there being no instructions given having a bearing thereon, it seems to us that the appellant was not obligated to set out all the miscellaneous instructions on the other issues. To us, the simpler and more expeditious thing for the appellee-State to have done would have been to set out any instruction which the State claimed covered the tendered instructions refused. * * *'

While the opinion referred to above was written after the case at bar came before this Court, and cannot be applied; it does present a very real consideration. Therefore, to avoid penalizing the litigants and to avoid confusion, we are passing over this procedural defect and will proceed to the merits. It is apparent that there was good reason why these two instructions were denied. Taking Instruction No. 1 first, it avers in substance that since the State didn't call as a witness one Beverly Ann Severance, who was available to them, the State admits her testimony would be adverse to them. Miss Severance was also available to the defendants and was called by Perdue's attorney. This inference does not operate where the witness is available to both sides. Indeed, here she was actually called by the other side. Therefore, this instruction did not apply to this case and was incorrect. Cauldwell, Inc. et al. v. Patterson (1961), 133 Ind.App. 138, 177 N.E.2d 490.

Instruction No. 3 was tendered as follows:

'The jury is instructed that a criminal charge against an accused involves two propositions, to wit, (1) the commission of the offense, and (2) the guilty agency of the accused in connection therewith; and both of these propositions must be established by the state to the satisfaction of the jury beyond a reasonable doubt; otherwise the accused is entitled to acquittal.'

This was overruled by the Trial Judge as already covered in existing instructions. 'The jury was fully and completely instructed on the issues to be tried, and there was no error in refusing other of appellant's requested instructions which were substantially covered by other instructions given to the jury.' Todd v. State of Indiana (1954), 233 Ind. 594, 122 N.E.2d 343. There was no reason why this instruction needed to be used.

Appellant asserts that his rights were prejudiced because he was tried jointly with Perdue, and that certain evidence produced at the trial pertaining to...