Boyd v. State, 371S63

• Citation: 28 Ind.Dec. 40,275 N.E.2d 797,257 Ind. 443
• Decision Date: 02 December 1971
• Docket Number: No. 371S63,371S63
• Parties: John BOYD, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 797

275 N.E.2d 797

257 Ind. 443

John BOYD, Appellant, v. STATE of Indiana, Appellee.

No. 371S63.

Supreme Court of Indiana.

Dec. 2, 1971.

Frank O. McLane, Marion, for appellant.

Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

Appellant, John Boyd, after trial to a jury, was convicted of Attempting to Commit a Crime While Armed With a Deadly Weapon and Assault and Battery With Intent to Kill. Appellant received a determinate sentence of five (5) years and one (1) day on the former conviction, and an indeterminate sentence of not less than two (2) years nor more than fourteen (14) years on the latter, both to run concurrently.

Count One, charging appellant with Attempting to Commit a Crime White Armed, omitting the caption to the affidavit, reads, in part, as follows:

'(Appellant) did then and there unlawfully and feloniously, and knowingly, while being over the age of 16 years, did then and there unlawful, feloniously, forcibly, by violence, and by putting Isadore Stoller in fear with a firearm, to-wit: a black revolver, the exact nature and description of which is unknown, attempt to take from the person and possession of the said Isadore Stoller, United States currency, of which United States currency the said Isadore Stoller then and there held in his possession and which money was then and there the property of the said Isadore Stoller. * * *'

Count Two, charging appellant with Inflicting Physical Injury While Attempting Robbery, reads, in part:

'(Appellant) did then and there unlawfully and feloniously, forcibly, by violence and putting Isadore Stoller in fear, attempt to take from the possession and person of the said Isadore Stoller lawful United States currency which said United States currency the said Isadore Stoller then and there held in his possession and which said money was then and there the property of the said Isadore Stoller and the said John Boyd while engaged in committing the crime of attempted robbery, as aforesaid, did then and there unlawfully and feloniously inflict a physical injury, to-wit: a wound in and upon the chin and chest of the said Isadore Stoller with a black revolver, the exact nature and description of which is to Affiant unknown, and then and there held in the hand of the said John Boyd * * *.'

The jury found appellant guilty of the crime charged in Count One and guilty of the lesser included offense of Assault and Battery With Intent to Kill on Count Two.

Appellant's Motion to Correct Errors was overruled, and the following allegations of error have been presented to this Court on appeal:

1. The trial court erred in overruling appellant's Motion to Suppress all evidence offered by the State to show that appellant was at a place other than the place stated in appellant's Notice of Alibi.

2. The trial court erred in instructing the jury to return a determinate sentence in the range of five (5) to thirty (30) years for Count One.

3. IC 1971, 35--12--1--1, (Ind.Ann.Stat. § 10--4709 (1970 Supp.)), is unconstitutionaly vague and uncertain.

It should be noted that no objection has been made concerning the trial court's determination that Assault and Battery With Intent to Kill is a lesser included offense of Inflicting Physical Injury While Attempting Robbery. Also, appellant has not questioned the correctness of the sentences on both Count One and Count Two. These matters, not being before this Court, need not be discussed in this opinion.

On August 7, 1970, some seventeen days before trial, appellant filed Notice of Intent to Present Defense of Alibi. The Certificate of Service certified that a copy of said motion was sent to the Prosecuting Attorney by ordinary United States Mail. Appellant's Notice of Alibi requested the Prosecuting Attorney to file and serve upon appellant's counsel a specific statement as to the exact date, time and place at which the State intended to present into evidence that appellant committed the crime. The Prosecuting Attorney failed to file the requested statement. At trial, appellant made a Motion to Suppress all evidence offered by the State that related to date, time and place of the commission of the crime by the appellant. The Motion to Suppress was initially sustained. After an overnight recess, the Prosecuting Attorney filed an affidavit claiming that appellant's Notice of Alibi had not been received. The trial court then reversed its previous holding and overruled the Motion to Suppress.

IC 1971, 35--5--1--3, (Ind.Ann.Stat. § 9--1633 (1956 Repl.)), which is controlling in this matter, provides, in pertinent part:

'At the trial, if it appears that the prosecuting attorney has failed to file and to serve upon the defendant or upon his counsel the prosecuting attorney's statement as prescribed herein, the court shall, in the absence of a showing of good cause for such failure by the prosecuting attorney, exclude evidence offered by the prosecuting attorney to show that the defendant was at a place other than the place stated in the defendant's original notice and that the time was other than the time stated in defendant's original notice.'

Thus the question presented to this Court on appeal is whether the failure to receive the Notice of Alibi is a sufficient showing of 'good cause' to come within the meaning of that term as used in the above statute. We are of the opinion that good cause was shown.

The alibi statute obviously contemplates that, under certain circumstances, the failure to reply is excusable. No better reason for failing to reply could have been advanced than was shown here. If the Notice of Alibi was not received, it only follows that no reply would be made.

The evidence before the trial court concerning this matter consisted solely of the certification that notice had been mailed to the prosecuting attorney and the affidavit stating that notice had not been received. It was counsel for appellant who chose the method of delivery--ordinary mail. When it become evident to counsel for appellant that no reply had been made within the time prescribed by statute, no effort appears to have been made to obtain the desired information. Thus, there is nothing to indicate that the Prosecuting Attorney deliberately refused to furnish the information. The purpose of the exclusionary rule provided by the statute is to deter the State from withholding information from the defendant which is vital to the preparation of its defense. In the absence of any showing that the Notice of Alibi was actually received by the Prosecuting Attorney's office from which it could logically be inferred that the Prosecuting Attorney had refused to furnish the information sought, this Court can perceive of no valid or logical reason which would require the State's evidence to be excluded. Our holding on this matter certainly does not render the statute ineffective. Reasonable alternatives to service by ordinary mail are available. Physical delivery with signed receipt or registered mail could have been used. To hold that service by ordinary mail accompanied by a signed Certificate of Service is conclusive on the issue of actual delivery would be to fashion a rule which in no way would further the purpose of the alibi statute's provisions. Therefore, the trial court did not err in overruling the Motion to Suppress.

Appellant's second and third assignments of error relate to the statutory construction of IC 1971, 35--12--1--1 (Ind.Ann.Stat. § 10--4709 (1970 Supp.)), which pertains to armed felonies. The statute reads as...