Asocar v. State, 967

Decision Date22 May 1969
Docket NumberNo. 967,967
Citation247 N.E.2d 679,252 Ind. 326,17 Ind.Dec. 573
PartiesRaul A. ASOCAR, Appellant, v. STATE of Indiana, Appellee. S 76.
CourtIndiana Supreme Court

Frank E. Spencer, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., of Indiana, Michael V. Gooch, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Judge.

This an appeal from the judgment of the Marion Criminal Court, Division One, in which the appellant was found guilty of attempted commission of robbery while armed. Judgment was rendered following a jury verdict of guilty.

The evidence in the case is that on the 23rd day of July, 1966, at about 2:00 A.M. the prosecuting witness, Clinton Ford, had driven his automobile into a service station located at 15th and Northwestern in the city of Indianapolis. He got out of his car and walked over to an automobile driven by his brother where his brother was conversing with the defendant, who the witness believed was a service station attendant.

As Clinton Ford approached the defendant, the defendant stuck a gun in his side and said, 'This is a stick up.' The defendant then forced Clinton Ford and his brother to walk toward the service station. As they arrived at the door they hesitated before going inside, and the defendant tried to force them in saying that he didn't want to shoot them.

Ford's brother started walking towards the appellant, who started backing up, at which time the brothers knocked the gun from appellant's hand. The appellant then attempted to escape. Ford chased him, captured him and held him until the police arrived.

Ford testified that he did not know the gun was a tear gas gun until after it had been recovered. He testified that it looked like a small .22 automatic.

At the close of the state's evidence the appellant filed a motion for discharge for failure to prove the appellant's age, following which the Court on motion of the State permitted the State over appellant's objection to reopen its case for the sole purpose of establishing appellant's age.

Upon reopening, the following testimony was heard:

'Q. Sergeant White, as the detective who investigated this incident, can you tell me whether or not Raul Alamia Asocar is over the age of sixteen (16) years?

'A. Yes sir. Our records show that I checked him to be thirty-nine (39).'

It is within the discretionary powers of the Trial Court to permit the State to reopen its case. Acts of 1905, ch. 169, § 260, as amended and as found in Burns' Ind.Stat.Ann. § 9--1805 provides, in part as follows:

'Third. The parties may then respectively offer rebutting evidence only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case.' (Emphasis added.)

Under the provisions of the statute the Court was clearly within its discretionary power in permitting the State to reopen its case for the purpose of establishing the defendant's age. This Court has previously held that it will not interfere with the discretion of the Trial Court in admitting original testimony even after the evidence has been closed, unless it clearly appears that there was an abuse of discretion. Kahlenbeck v. State (1888), 119 Ind. 118, 123, 21 N.E. 460. It will be noted from the above quoted testimony from Sgt. White that he was asked if he could tell whether or not the appellant was over the age of 16 years, to which he answered, 'Yes sir.' He further explained that the records showed him to be 39 years of age.

This Court has held that evidence of age can be established by a witness giving his observation of the appellant as to his age. Watson v. State (1956), 236 Ind. 329, 334, 140 N.E.2d 109.

In addition, the record in this cause shows the verdict of the jury to be, in part, 'and we find the defendant's age is 39 years.'

It is, therefore, apparent from this record that there is a specific finding in the verdict as to the age of the appellant and that this finding is substantiated by competent evidence, which was admitted within the sound discretion of the Trial Court.

There are two other questions remaining in this case which must be disposed of. The appellant claims there is no evidence showing that he was armed with a weapon as defined in the statute under which he was charged. The evidence was that he was armed with a tear gas pistol which was constructed in such a manner that no projectile was fired from the gun, but the firing of the gun caused an emission of tear gas only. The statute reads as follows.

'Any person who being over sixteen (16) years of age, commits or attempts to commit either the crime of rape, robbery, bank robbery, or theft while armed with a pistol, revolver, rifle, shotgun, machine gun or any other firearm or any dangerous or deadly weapon, or while any other person present and aiding or assisting in committing or attempting to commit either of said crimes is armed with any of said weapons, shall be guilty of a separate felony in addition to the crimes above named and 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: Provided, That such court shall have the right to provide in the judgment that such term of imprisonment shall not run concurrently with any imprisonment that may be adjudged for either of the crimes first above enumerated but that such term of imprisonment shall be served beginning at the expiration of the imprisonment adjudged for either of said first named crimes. (Acts 1929, ch. 55, § 1, p. 139; 1965, ch. 298, § 1, p. 819.)' § 10--4709 Burns' Ind.Stat.Ann. (1968 Cum.Supp.)

This Court has recently held that use of the term 'firearm' as it appears in the above statute covers the entire spectrum of possible weapons which use gun powder. There is, therefore, competent proof under the weight of authority in this state and throughout the United States that the use of the weapon described in this case was evidence from which the trier of fact could conclude that the appellant used a firearm. Kidwell v. State (1967), Ind., 230 N.E.2d 590.

He further claims that the evidence is that the gun was not loaded at the time of the alleged offense. In the instant case there is no question but what the pistol, even though it was a tear gas pistol, was of a type which when loaded was fired by gun powder, the force of which emitted tear gas. When a firearm is used in the commission of a crime, the fact that it may not have been loaded does not reduce the offense. See 79 A.L.R.2d 1426, note 6 and cases cited; also, 74 A.L.R. 1209 and cases cited.

Finally, the appellant raises the question that there is no such crime as attempted robbery while armed, and that there is no evidence that the appellant did at any time attempt to take anything whatsoever from the person of Clinton Ford as charged in the affidavit. As to the question concerning the crime of attempted robbery while armed, we can only refer to the express language of the statute as above quoted.

The alleged victim of the attempted robbery, Clinton Ford, testified, in part, as follows:

'When I got where he was, he put a gun in my side and said, 'This is a stick up."

This testimony together with all of the other testimony describing the acts of the appellant in this case clearly demonstrate evidence from which the trier of fact could have concluded beyond a reasonable doubt that the appellant did, in fact, attempt to perpetrate a robbery against the person of Clinton Ford.

The decision of the lower Court is affirmed.

ARTERBURN and HUNTER, JJ., concur.

DeBRULER, C.J., concurs in result.

JACKSON, J., dissents with opinion.

JACKSON, Judge (dissenting).

I am unable to agree with the decision reached in the majority opinion and dissent thereto.

Appellant was charged by affidavit filed in the Criminal Court, Division One, of Marion County, Indiana, with 'Attempt to Commit Robbery While Armed.' Appellant entered a plea of not guilty to the affidavit and the cause was tried by jury resulting in a verdict of 'guilty of the commission of Attempted Robbery while Armed, as charged in the affidavit * * *;' thereafter judgment was rendered on the verdict and appellant was sentenced to the Indiana State Prison for a term of ten (10) years and costs.

The affidavit herein reads as follows:

'BE IT REMEMBERED, That, on this day before me, NOBLE R. PEARCY Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came CLARENCE A. WHITE who, being duly sworn, upon his oath says that RAUL ALAMIA ASOCAR on or about the 23rd day of JULY, A.D. 1966, at and in the County of Marion in the State of Indiana, being then and there over the age of sixteen (16) years, did then and there unlawfully, feloniously, forcibly by violence and by putting CLINTON FORD, in fear with a GUN, attempted to take from the person and possession of the said CLINTON FORD, money, which said money the said CLINTON FORD then and there lawfully held in his possession and which said money was then and there the property of CLINTON FORD, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana. (Emphasis supplied)

/s/ Clarence A. White

Subscribed and sworn to before me this 14th day of NOVEMBER, A.D. 1966.

/s/ Noble R. Pearcy

Prosecuting Attorney

Nineteenth Judicial


The statute upon which this prosecution was based is found in Burns' Ind.Stat.1968 Cum.Pocket Supp. Vol. 4, Pt. 2 and reads as follows:

'10--4709 (2317.1). Commission of or attempt to commit crime while armed with deadly weapon.--Any person who being over sixteen (16) years of age, commits or attempts to commit either the crime of rape, robbery, bank robbery, or theft while armed with a pistol, revolver, rifle, shotgun, machine gun or any other firearm or any dangerous or deadly weapon, or while any other person present and aiding or assisting in committing or...

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    ...Rowe v. State, (1974) 262 Ind. 250, 314 N.E.2d 745 (defendant pointed a .45 calibre automatic pistol). See also, Asocar v. State, (1969) 252 Ind. 326, 247 N.E.2d 679 (under prior statute: fact that firearm may not have been loaded does not reduce offense).For purposes of this case we need n......
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    ...reopen, taking into consideration the interests of fairness and justice in allowing the entire case to be presented. Asocar v. State (1969), 252 Ind. 326, 247 N.E.2d 679. Defendant has failed in his Brief to point out what harm he suffered by the court's ruling and therefore we find no abus......
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