Blow v. State, 976S313

Decision Date22 February 1978
Docket NumberNo. 976S313,976S313
Citation267 Ind. 632,372 N.E.2d 1166
PartiesHarvey BLOW, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

William C. Erbecker, James Manahan, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

After a conviction by a jury on March 30, 1976, in the Marion Criminal Court for attempting the commission of a felony while armed, appellant Harvey Blow was sentenced to seventeen years imprisonment. The record shows that on November 25, 1974, officers from the Marion County Sheriff's office and the Indianapolis Police Department staked out Elks Lodge Number 13 at 8845 Township Road, Indianapolis, Indiana, where approximately two or three thousand dollars in weekend receipts were kept. At about 10:30 that morning, appellant Blow and Andrew Hawthorne arrived at the Elks Lodge. George Hale, a custodian of the Elks Lodge, opened the doors, whereupon appellant Blow and Hawthorne entered. Appellant was wearing rubber surgical gloves and carried a sawed-off shotgun and a bag containing two ski masks and adhesive tape. Appellant told Hale it was a "stick up" and put the shotgun to Hale's chest. After being told to lie down, Hale was struck on the head and knocked out. Appellant left Hale and entered another room where a police officer shouted, "Stop, police." Appellant, who was then three or four feet from the officer, turned toward the officer with his shotgun. The officer shot and wounded appellant. Hale was found by another officer lying face down on the floor with his hands tied behind his back. Hawthorne, who was holding a knife to Hale's back, was arrested without further incident.

Appellant assigns three errors in the proceedings of his trial below: (1) that the trial court erred in giving an instruction on reasonable doubt; (2) that the trial court erred in denying appellant's motion for judgment on the evidence, and; (3) that the trial court erred in refusing to give appellant's tendered instruction on possible lesser included offenses.

I.

Appellant assigns error to the trial court's instruction to the jury on reasonable doubt. It is alleged that the instruction contained extraneous matters that confused the jury. At trial, appellant filed a written objection to the court's proposed preliminary instruction. Appellant's tendered instruction modifying the preliminary instruction on reasonable doubt was accepted and given to the jury as modified. Appellant did not object to this modified instruction on reasonable doubt. It is this modified instruction that appellant urges as error.

Where an alleged error has not been raised by proper objection at trial, it will not be considered on appeal. Stacker v. State (1976), Ind., 348 N.E.2d 648; Brown v. State (1975), Ind., 338 N.E.2d 498. The only exception is if failure to consider the alleged error would deny the appellant fundamental due process. Greentree v. State (1976), Ind., 351 N.E.2d 25; Brown v. State, supra. In the case at hand, appellant failed to object at trial to the giving of the modified instruction. Furthermore, the modified instruction was not so confusing as to deny appellant fundamental due process. Consequently, appellant's assignment of error is without merit.

II.

Appellant next contends that the trial court erred in denying his motion for a directed verdict at the close of the state's case. Following denial of this motion, appellant did not present any evidence of his own. This court has held that overruling a motion for a directed verdict is error only if there is a total lack of evidence on some essential issue or where the evidence is susceptible of only one inference, and that being in favor of the accused. Mendez v. State (1977), Ind., 367 N.E.2d 1081; Carmon v. State (1976), Ind., 349...

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12 cases
  • Decker v. State, 2-877-A-331
    • United States
    • Indiana Appellate Court
    • March 5, 1979
    ... ... Blow v. State (1978), Ind., 372 N.E.2d 1166; Stein v. State (1975), Ind.App., 334 N.W.2d 698, 700." ...         Defendant now urges that the ... ...
  • Mulry v. State
    • United States
    • Indiana Appellate Court
    • January 21, 1980
    ...each defendant's statement against the other as co-defendant is waived and was properly considered by the trier-of-fact. 4 Blow v. State, (1978) Ind., 372 N.E.2d 1166; Cf., Winston v. State, (1975) 165 Ind.App. 369, 332 N.E.2d Because evidence was admitted in violation of Miranda, we must d......
  • Norris v. State
    • United States
    • Indiana Supreme Court
    • September 19, 1979
    ...waived this alleged error, unless he can show that failure to consider the issue would deny him fundamental due process. Blow v. State (1978) Ind.,372 N.E.2d 1166, 1167; Bell v. State (1977) Ind., 366 N.E.2d 1156, 1160. Taking appellant's prints without his counsel being present violated no......
  • White v. Indiana Parole Bd.
    • United States
    • Indiana Appellate Court
    • June 24, 1999
    ... ... In December of 1974, White set a fire that resulted in the death of six people. The State charged her with six counts of felony murder of which she was found guilty in 1975. The trial court ... ...
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