Cammack v. State
| Decision Date | 15 September 1970 |
| Docket Number | No. 1068S246,1068S246 |
| Citation | 22 Ind.Dec. 628,261 N.E.2d 862,254 Ind. 637 |
| Parties | Henry CAMMACK, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Don R. Money, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal brought by appellant, Henry Cammack, from a conviction in the Marion Criminal Court, Division Two, of the crime of assault and battery with intent to commit a felony. Trial was had before a jury and upon a verdict of guilty, judgment was entered against appellant, sentencing him to the Indiana Reformatory for not less than one (1) nor more than ten (10) years.
Appellant filed a timely motion for a new trial accomplished by memorandum in which he alleged that:
(1) The verdict of the jury is not sustained by sufficient evidence, and
(2) That the verdict of the jury is contrary to law.
It is from the overruling of the said motion for new trial that appellant is appealing, it being his sole assignment of error.
Before discussing the merits of this appeal, we are once again compelled to note the failure of counsel for appellant to file a brief which complies with Rule AP. 8.3(A)(7). That rule requires:
(our emphasis)
Nowhere in appellant's brief can an argument section be found. There is a section entitled 'Brief Argument Without Authorities' which counsel for appellant evidently intends to be the summary of his argument as required by AP. 83(A)(6). However the succeeding section which should, accounting to our rules, be the argument section is entitled 'Authorities Relied Upon' and contains nine pages of quotations from two cases: Miller v. State (1960), 240 Ind. 398, 166 N.E.2d 338 and Heglin v. State (1957), 236 Ind. 350, 140 N.E.2d 98.
The appellant's brief in this case is identical in form to the brief filed by the very same counsel in the case of McDougall v. State (1970), Ind., 257 N.E.2d 674. This Court noted the following:
(our emphasis) 257 N.E.2d at 676.
The failure to comply with Rule AP. 8.3(A)(7) is more than a mere procedural defect; it is a far more serious omission. Counsel for appellant has in effect made no attempt to offer an argument on appellant's behalf. Without an argument section in appellant's brief, there is in reality no appeal. Although this court has said that where possible it will decide an appeal on its merits, the non-compliance with the rules of appellate procedure by counsel for appellant in this case is inexcusable. The liberal use of a Xerox machine can never be a substitute for the work product of a conscientious attorney. However, in view of the question presented, namely the sufficiency of the evidence, we will proceed to decide this appeal on its merits.
The evidence most favorable to the state reveals the following: on May 11, 1968, at approximately 10:50 P.M. the victim, Freddie Tolliver, and a companion were riding in Tolliver's vehicle in downtown Indianapolis. As they proceeded on 25th street in that city one Alonzo Douglas pulled up behind them and began blowing his horn. Tolliver pulled over to the side of the road and stopped and Douglas did the same. It seems that Douglas had developed a flat tire and, being without a lug wrench, sought assistance from Tolliver.
The three men tried to remove the tire and not being able to do so, the victim then offered to drive Douglas and his female companion home. Douglas declined the offer wishing instead to remain with the vehicle. He suggested that the two men take the girl home and they did so. She was Betty Jean Cammack, wife of appellant. Witnesses testified that Mrs. Cammack was intoxicated when Tolliver picked her up. She rode alone in the back seat of the victim's car when he took her home.
Upon arrival at the appellant's house at approximately 11:45 P.M. appellant was standing on the sidewalk, and the victim told him that his wife was asleep in the backseat of the victim's car. Appellant's mother-in-law who was present at the time, thanked the victim for bringing her daughter home, and asked appellant to carry her into the house. He refused.
Appellant asked the victim what he was doing with his woman in the car. The victim stated that he had brought her home because she wasn't feeling well and that appellant should be grateful to him for his service. Appellant replied that since he brought her home he should also take her into the house. During the ensuing altercation, a man identified as John carried appellant's wife inside.
The victim then proceeded to get back into his car to leave when appellant went around to the other side and exchanged further words with him. The victim then got out of his car and stated: Defendant replied
The two men...
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