Bays v. State, 29739

• Decision Date: 16 June 1959
• Docket Number: No. 29739,29739
• Citation: 240 Ind. 37,159 N.E.2d 393
• Parties: Otho BAYS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 393

159 N.E.2d 393

240 Ind. 37

Otho BAYS, Appellant, v.STATE of Indiana, Appellee.

No. 29739.

Supreme Court of Indiana.

June 16, 1959.

Bernard C. Craig, Brazil, for appellant.

Edwin K. Steers, Atty. Gen., Merl M. Wall, Asst. Atty. Gen., for appellee.

ACHOR, Chief Justice.

Appellant was charged by indictment in three counts with (1) Grand Larceny, (2) First Degree Burglary and (3) Auto Banditry.Appellant entered a plea of not guilty to each count of the indictment and filed notice of alibi.

Appellant then filed a motion to suppress and exclude evidence.After hearing, the motion was overruled.Appellant then filed a verified petition for hearing on sanity.The court appointed two doctors and after the hearing thereon, the court found appellant sane.Appellant was tried and found guilty on each of said three counts and sentenced accordingly, with sentence to be served concurrently.

Appellant then, by trial counsel of his choice, seasonably filed a motion for new trial, which was overruled.The motion contained only the following two grounds: (1) that the verdict of the jury is contrary to law; (2) that the verdict of the jury is not sustained by sufficient evidence.

Thereafter, present pauper counsel was appointed for the purpose of prosecuting this appeal.

In his assignment of errors appellant asserts that the court committed error, in each of the following: (1) in overruling the motion to suppress evidence; (2) in admitting in evidence testimony of the search and the evidence resulting from the search; (3) in failing to instruct on the issues in its preliminary instructions as required by Rule 1-7a of this court; (4) in failing by its preliminary instruction No. 1 to instruct on the issue of alibi and insanity; (5) by its preliminary instruction No. 1 in limiting the issues to the affidavit and the plea of not guilty thereto; (6) in giving to the jury at the close of all the evidence its instruction No. 1 by omitting the issues of alibi and insanity; (7) in giving to the jury instruction No. 22 on accessory before the fact; (8) after giving instruction No. 22 on accessory before the fact, in failing to furnish to the jury a form of verdict touching accessory before the fact or instructing them that they could prepare their own verdict; (9) in pronouncing judgment on the verdict of the jury on count No. 2 of the affidavit; (10) in pronouncing judgment on the verdict of the jury on count No. 3 of the affidavit; (11) in overruling defendant's motion for a new trial; (12) that the defendant Bays was not adequately defended in the trial in violation of Art. 1, § 13 of the Constitution of Indiana and the Fourteenth Amendment to the Constitution of the United States.

Specifications 1 to 10, inclusive, are not proper separate assignments, but should have been assigned as causes in a motion for a new trial.They therefore present no question for consideration of this court and are waived.In fact, under Rule 2-6 of this court the only assignments of error which present any question are (11) the overruling of the motion for new trial and (12) the question of adequacy of counsel.

Rule 2-6 provides:

'If, in the trial court, a motion for a new trial is filed, each error relied upon, however and whenever arising up to the time of the filing of said motion, may be separately specified therein as a ground therefor, and an assignment of error to the effect that the trial court erred in overruling said motion shall be sufficient to raise said asserted error on appeal.Errors which now must be assigned independently may still be so assigned if desired.'[Adopted April 17, 1940.Effective September 2, 1940.Amended and effective November 30, 1949.]

Prior to the adoption of the above rule it was permissible to inadependently assign many errors in the proceeding which preceded the filing of a motion for new trial however, the rule as changed requires that, in all proceedings where a trial is had and a motion for new trial is contemplated, such errors shall be specified as a ground for new trial.The chief reason for requiring that such errors be set forth as causes in a motion for new trial is that the trial judge have a chance to review the subject matter complained of and correct the error, if any, by granting the motion for new trial prior to appeal.Flanagan, Wiltrout & Hamilton's, etc., § 1814, pp. 391, 392.

We first consider matters raised by the motion for new trial.Appellant does not argue the sufficiency of the evidence to sustain the conviction.Therefore, the sole question reserved by the motion and presented here for review is this: Was the decision contrary to law?

Appellant here contends that the verdict was contrary to law for the reason that counts 2 and 3 of the indictment do not state facts which constitute a criminal offense, and therefore that the verdict which purported to find the appellant guilty of crime based upon such charges, is contrary to law.

We therefore examine the affidavit to determine whether counts 2 and 3 constituted criminal offenses under the laws of this state.

The affidavit in three counts is as follows:

'* * * that Otho Bays late of said county, on the 5th day of January in the year of 1958, A.D., at the County and State aforesaid, did then and there unlawfully and feloniously.

Count One:

take, steal and carry away of the personal property of one Aleta Butterman, two portable radios, two Winchester rifles, a .410 guage shotgun, a Revere camera and projector, a Poleroid camera, a .38 calibre pistol, and a set of binoculars, all of the total value of $300.00 or more,

Count Two:

break and enter the residence of one Aleta Butterman, same being a place of human habitation, with the intent to commit the felony of larceny therein,

Count Three:

break and enter the residence of one Aleta Butterman, same being a place of human habitation, with the intent to commit the felony of larceny therein, having on or near the premises an automobile by the use of which he made his escape, same being contrary to the form of the Statute in such cases; made and provided against the peace and dignity of the State of Indiana.'

As stated by appellant, neither count 2 or 3 state the facts constituting the crime of larceny, which appellant allegedly had 'intent to commit.'In support of his proposition that the affidavit must specifically allege such facts in order to constitute a crime, appellant relies upon the case of Pope v. State(Lewis v. State), 1949, 227 Ind. 197, 200, 84 N.E.2d 887;Borders v. State, 1923, 193 Ind. 477, 478, 141 N.E. 50.

We therefore consider the controlling effect of said cases upon the issues here presented.In the Popecase, supra, this court held that in a charge of automobile banditry in which a larceny was allegedly committed, a total absence of any allegation regarding the value of the property made the charge subject to the statutory motion in arrest of judgment.¹We further held that the defect in the affidavit was not cured by the evidence.Likewise in the case of Borders v. State, supra, this court held an affidavit which charged the accused with 'unlawful * * * possession of intoxicating liquor' did not charge a criminal offense since mere possession of intoxicating liquor was not a crime under the statute.

This court has stated on numerous occasions that if an indictment fails to aver material facts constituting the offense attempted to be charged, a motion in arrest of judgment should be sustained.Woodsmall v. State, 1913, 179 Ind. 697, 102 N.E. 130;Boos v. State, 1914, 181 Ind. 562, 105 N.E. 117;Shock v. State, 1926, 197 Ind. 680, 151 N.E. 827;Crumley v. State, 1933, 204 Ind. 396, 184 N.E. 533.

In this case however, the issue was quite different in that the felony intended was not committed, neither was a motion to quash or in arrest of judgment filed.These circumstances reduce the question to this: Did counts 2 and 3 of the affidavit in this case charge any offenses whatever or was the conviction based thereon a nullity?Upon this issue appellee asserts that counts 2 and 3 are sufficient (subject possibly to a motion to quash for indefiniteness) to state the offenses charged.In support of this position the state argues that the gist of the offense charged in count 2 is burglary--the unlawful breaking and entering, with intent to commit a felony being merely the ulterior motive.Therefore the state reasons that it is sufficientr for the information of the defendant in the preparation of his defnese and for his protection against double jeopardy that his unlawful acts be specifically allegeD and that a general allegation regarding the particular felony intended, but not committed, is sufficient.The state further asserts that the gist of count 3 is the same, with additional allegation that appellant had an automobile nearby in which he escaped or intended to escape.In such instances the law is clear that it was not necessary to allege the kind or value of the goods intended to be stolen.Suter v. State, 1949, 227 Ind. 648, 653, 88 N.E.2d 386; Taylor, Bryant v. State, 1956, 235 Ind. 126, 129, 131 N.E.2d 297;Bloch v. State, 1903, 161 Ind. 276, 68 N.E. 287.

Whether or not it was necessary to allege other facts regarding the goods intended to be stolen has not heretofore been adjudicated in this state.The general rule upon this subject has been stated as follows:

'The constitutional right of the accused to be informed of the nature and cause of the accusation against him requires that every material fact and essential element of the offense be charged with precision and certainty in the indictment or information.[Brockway v. State(1923), 192 Ind. 656, 138 N.E. 88, 26 A.L.R. 1338.]He has a substantive right to be informed by the indictment or information in simple, understandable language of the crime he is charged with and the acts constituting the crime, in sufficient detail to enable him to prepare his defense and to be...