Candler v. State

Decision Date24 June 1977
Docket NumberNo. 576S164,576S164
Citation363 N.E.2d 1233,266 Ind. 440
PartiesRobert Eugene CANDLER, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court
Joseph D. Bradley, South Bend, for appellant

Theo L. Sendak, Atty. Gen., Lesly A. Bowers, Deputy Atty. Gen., Indianapolis, for appellee.

DE BRULER, Justice.

Appellant Robert Eugene Candler was convicted after trial by jury of first degree murder, Ind. Code § 35--13--4--1 (Burns 1975) and commission of a felony (robbery) while armed, Ind. Code § 35--12--1--1 (Burns 1975). He was sentenced to consecutive terms of life imprisonment for the murder and fifteen years for the armed robbery. On appeal appellant raises numerous issues, which we have consolidated as follows:

(1) whether the trial court erred in refusing either to dismiss count II of the information because of prejudicial surplusage, or to strike such surplusage;

(2) whether appellant was entitled to reserve his opening statement until the close of the State's case-in-chief (3) whether testimony by a police officer concerning the finding of a wallet during a search of appellant's automobile should have been excluded as the product of an unlawful search;

(4) whether two guns and a shotgun shell were improperly admitted due to an inadequate chain of custody;

(5) whether the trial court's instructions on reasonable doubt invaded the province of the jury;

(6) whether the trial court erred in refusing to instruct the jury that robbery was a lesser included offense of first degree (felony) murder;

(7) whether appellant could properly be sentenced for both first degree (felony) murder and commission of a felony while armed, when both convictions were based upon the same robbery;

(8) whether the evidence was sufficient to support each verdict.

On the night of November 20, 1974, appellant and two companions robbed the J & H Tavern and appellant fatally wounded a customer with a shotgun blast to the chest.

I.

Appellant was charged by an information in two counts, reading as follows:

'COUNT I

ELMER CHIKAR, upon information received by him, says:

That on or about the 19th day of November, 1974, at and in the County of St. Joseph, State of Indiana, one ROBERT EUGENE CANDLER did unlawfully and feloniously kill and (murder) one JOHN F. BRITTON, while engaged in an (armed) robbery, by (unlawfully and feloniously) robbing the J & H Tavern and the customers therein, (and while engaged in this armed robbery, did unlawfully and feloniously kill and murder JOHN F. BRITTON by unlawfully and feloniously) shooting JOHN F. BRITTON with a shotgun containing pellets and powder whereby JOHN F. BRITTON died as a result of the wound inflicted by said shotgun, contrary to the form of Statute in such cases made and provided and against the peace and dignity of the State of Indiana. The above acts were committed in violation of Burns Indiana Statutes, Section 10--3401, I.C. 35--13--4--1.

COUNT II

ELMER CHIKAR, upon information received by him, says:

That on or about the 19th day of November, 1974, at and in the County of St. Joseph, State of Indiana, one ROBERT EUGENE CANDLER did unlawfully, feloniously and forcibly, by violence and putting ANITA WROBLEWSKI in fear, take, rob and steal from the person and possession of ANITA WROBLEWSKI, lawful United States currency of the approximate amount of One Hundred Thirty ($130.00) Dollars, belonging to one Helen Elliot, dba the J & H Tavern, 59400 Crumstown Highway, North Liberty, County and State aforesaid, and the said ROBERT EUGENE CANDLER being a person over the age of sixteen (16) years did commit the crime of robbery as aforesaid while armed with a certain firearm, to-wit: a 12 gauge shotgun, contrary to the form of Statute in such cases made and provided and against the peace and dignity of the State of Indiana.

The above acts were committed in violation of Burns Indiana Statutes, Section 10--4709, I.C. 35--12--1--1.' (Caption, signatures, and jurat omitted. Words in brackets are those ordered stricken by trial court.)

Before trial appellant filed a written motion to dismiss the information for the reason that it failed to comply with Ind. Code § 35--3.1--1--2(a)(4) (Burns 1975) which provides that an indictment or information shall allege an offense by 'setting forth the nature and elements of the crimes charged in plain and concise language without unnecessary repetition . . ..' The accompanying memorandum objected to various words and phrases in each count as being repetitious and inflammatory. The trial court did not dismiss either count, but ordered stricken the words in Count I enclosed in brackets. Nothing was stricken from Count II, although the words 'unlawfully and feloniously and forcibly', 'fear', and 'rob and steal' and 'contrary to the form of Statute in such cases made and provided and against the peace and dignity of the State of Indiana' in that count were challenged. All of the language objected to in Count I was stricken.

Appellant argues that Count II was defective, and that he was prejudiced by the reading of its unnecessary and inflammatory language to the jury. He does not contend that the trial court's action in striking the offending language from Count I rather than dismissing that count was improper, but urges that the trial court should have either dismissed Count II or stricken the challenged language therefrom. The State replies that the trial court need do neither unless the verbiage complained of substantially prejudices the accused. We will first consider whether Count I should have been dismissed.

Section 35--3.1--1--2(a)(4) requires criminal charges to set out 'the nature and elements of the crimes charged in plain and concise langauge without unnecessary repetition.' Subsection (d) states that the charge 'shall be a plain, concise and definite written statement of the essential facts of the crime charged' which 'need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement.' Since the adoption of code pleading in Indiana in 1852, our successive statutes have essentially required the pleading of crimes 'in plain and concise langauge.' See II Rev.Stat. (1852) 367; Ch. 36, § 157 (1881) Ind. Acts 144; Ch. 169, § 169 (1905) Ind. Acts 584. The purpose of these statutes was to abolish common law pleading requirements 1 and permit offenses to be charged either in the words of the penal statute or in straightforward equivalent language. In Doss v. State, (1971) 256 Ind. 174, 267 N.E.2d 385, this Court considered the effect of the inclusion of unnecessary common law phrases, 'unlawfully, feloniously, and burglariously,' in an affidavit for burglary. We recognized these words as surplusage but found that they were not sufficiently prejudicial to the accused to render the affidavit defective. We relied on a statute since repealed, which provided:

'No indictment or affidavit shall be deemed invalid . . ..

Sixth. For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged.'

Chapter 169, § 192 (1905) Ind. Acts 584, repealed July 26, 1973, formerly compiled at Ind.Stat.Ann. § 9--1127 (Burns 1956). In place of this statute the Legislature enacted Ind. Code § 35--3.1--1--5 (Burns 1975), subsection (a)(3) of which provides:

'An indictment or information which charges the commission of a crime shall not be dismissed but may be amended on motion by the prosecutor at any time because of any immaterial defect, including:

(3) The presence or absence of any unnecessary or repugnant allegation . . ..'

This section remedies a deficiency of prior law by allowing immaterial defects to be corrected by amendment, but does not require such correction. The comments to this section by its drafters, the Indiana Criminal Law Study Commission, indicate that it was not intended to alter the prior 'surplusage or repugnant allegation' statute. Proposed Indiana Code of Criminal Procedure, Comment to § 35--3.1--1--7 (Final Draft, 1972) (§ 35--3.1--1--7 was enacted as Ind. Code § 35--3.1--1--5). Therefore under Doss the trial court's refusal to dismiss Count II was erroneous only if the language complained of was 'manifestly detrimental' to appellant. 265 Ind. at 179, 267 N.E.2d at 388. The langauge challenged here is not greatly different from that in Doss. While it may be doubted whether the use of these archaic terms accords with the spirit of the statutes in effect these past one hundred years concerning criminal chagrining, that does not necessarily render them prejudicial to the accused. Appellant contends that the challenged language threatened to inflame the jury by rhetorical excess. The formal, stilted, and archaic expressions of Count II do not appear to us, however, to be capable of producing strong emotional reaction among the jurors such as to threaten their impartiality. The trial court did not err in refusing to dismiss Count II.

Nor did the court err in refusing to strike the language in question. While there is no explicit statutory authority for a motion to strike surplusage from an information, such a procedure was approved by this Court in Torphy v. State, (1918) 187 Ind. 73, 118 N.E. 355. We held that 'such allegations as serve only to prejudice the defendant without aiding or contributing to the statement of the offense charged' should be stricken on motion. 187 Ind. at 75--76, 118 N.E. at 356. In Torphy the indictment alleged a previous conviction of the defendant, which was not an element of the offense charged. This Court has often held that exposure of the jury to evidence of other offenses committed by the accused is improper because of the prejudicial effect of such evidence. Stevens v. State, (1976) Ind., 354 N.E.2d 727, 734, and cases cited. Torphy relied on such a holding, Rock v. State, (1916) 185 Ind. 51, 110 N.E. 212. The language complained of in Count II pales in comparison with revelation of a prior...

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