Davis v. State, No. 30668

Docket NºNo. 30668
Citation249 Ind. 596, 233 N.E.2d 642
Case DateFebruary 14, 1968
CourtSupreme Court of Indiana

Page 642

233 N.E.2d 642
249 Ind. 596
Wilbur R. DAVIS, Appellant,
v.
STATE of Indiana, Appellee.
No. 30668.
Supreme Court of Indiana.
Feb. 14, 1968.

[249 Ind. 597]

Page 643

George P. Dickmann, Dickmann & Dickmann, Greenfield, for appellant.

John J. Dillon, Atty. Gen., David S. Wedding, Deputy Atty. Gen., for appellee.

JACKSON, Judge.

This appeal comes from the Hancock Circuit Court. Appellant was originally charged, by affidavit in two counts filed in Criminal Court of Marion County, with the crimes of Robbery (Count 1) and Kidnapping (Count 2). The venue of said cause was transferred from Marion County to Hancock County pursuant to the granting of appellant's motion for change of venue from Marion County.

The Hancock Circuit Court granted the State's Motion to Nolle Count 1 of the affidavit subsequent to the filing of a Motion to Quash the original affidavit by the appellant.

The issues were joined by appellant's Plea of Not Guilty to Count 2 of the original affidavit, such Count charging appellant with the crime of kidnapping.

The issues were decided by the verdict of the jury finding the defendant, Wilbur R. Davis, guilty of the crime of kidnapping and by the rendition of judgment thereon by the Hancock Circuit Court.

[249 Ind. 598] The verdict of the jury, omitting caption and signature, reads as follows:

'We, the jury, find the Defendant, Wilbur R. Davis guilty as charged in the affidavit and find his age to be 33 years.'

The judgment of the Hancock Circuit Court rendered on the verdict of the jury reads as follows:

'Comes now the State of Indiana by George J. Lewis, Prosecuting Attorney. Comes now the defendant, Wilbur R. Davis, in person and by his counsel, George P. Dickmann, all in open Court. The Court, now on the verdict of the

Page 644

jury, finds and adjudges that Wilbur R. Davis is guilty of the offense of kidnaping as charged in the affidavit herein and that said Defendant, Wilbur R. Davis is 33 years old. The Court now orders and adjudges that said defendant, Wilbur R. Davis, be confined in the Indiana State Prison for and during his natural life. The Sheriff of Hancock County is ordered to deliver said Wilbur R. Davis to the Indiana State Prison for the carrying out of this sentence at the expiration of 30 days from the date of the verdict of the jury in this matter. The Defendant, Wilbur R. Davis, is now remanded to custody.'

On the 4th day of September, 1962, the State of Indiana filed an affidavit in the Criminal Court of Marion County, Indiana, which affidavit, omitting caption and jurat, reads as follows, to-wit:

'BE IT REMEMBERED, That, on this day before me, PHILLIP L. BAYT Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came CHARLES HAINE who, being duly sworn, upon his oath says that WILBUR R. DAVIS, GEORGE HENRY WILLIS, RONNIE COLEMAN MURRAY AND JANET ATHERTON on or about the 23rd day of AUGUST, A.D. 1962, at and in the County of Marion in the State of Indiana, did then and there unlawfully, feloniously, forcibly by violence and by putting HOWARD HOPKINS, in fear, take from the person and possession of the said HOWARD HOPKINS, UNITED STATES CURRENCY, then and there of the value of TWO HUNDRED AND EIGHTY THREE DOLLARS ($283.00) which property the said HOWARD HOPKINS, then and there lawfully[249 Ind. 599] held in his possession and control, and was then and there the property of HOWARD HOPKINS AND INDIANA MOTELS INC., d/b/a ALAMO PLAZA MOTEL, then and there being contrary to the form of the statute made and provided and against the peace and dignity of the State of Indiana.

COUNTY TWO:

The affiant aforesaid, upon his oath aforesaid, further says that WILBUR R. DAVIS, GEORGE HENRY WILLIS, RONNIE COLEMAN MURRAY AND JANET ATHERTON, on or about the 23rd day of AUGUST, 1962, did then and there feloniously, and forcibly carry away and kidnap the following person, namely HOWARD HOPKINS, from a place within the State of Indiana towit: ALAMO PLAZA MOTEL then and there situate at 7550 EAST WASHINGTON STREET in said County of Marion, in the State of Indiana, with the felonious intention then and there and thereby of carrying the said HOWARD HOPKINS away from said place within said State said acts were not then and there done in pursuance of or under the laws of the State of Indiana or of the United States, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

Appellant Davis challenged sufficiency of the affidavit by a Motion To Quash, such motion, omitting heading, reads as follows, to-wit:

'Comes now the Defendant, Wilbur R. Davis, by his attorney, George P. Dickmann, and respectfully moves the Court to quash the affidavit heretofore filed herein for the following reasons:

1. That the facts stated in the affidavit do not constitute a public offense.

2. That the affidavit contains matter which, if true, constitutes a legal bar to the prosecution.

3. That the affidavit does not state the offense with sufficient certainty.

WHEREFORE, the Defendant, Wilbur R. Davis, respectfully moves the

Page 645

Court to quash the affidavit heretofore filed herein and for all other just and proper relief in the premises.

[249 Ind. 600] MEMORANDUM

The affidavit heretofore filed herein is subject to be quashed for the reason that the affidavit alleges separate and distinct offenses created by separate and distinct statutes of the State of Indiana which are not authorized to be joined in a single affidavit under the law of the State of Indiana. Pleading of separate and distinct offenses created by separate and distinct acts of the statutes or by separate statutes is forbidden, Strickland vs. State of Indiana, 217 Ind. 588, 591; 20 NE (2) 950, 951.

It is important to note that the law of the State of Indiana has consistently followed the theory that separate or dissimilar felonies should not and cannot be charged in the same indictment or affidavit. In the case of McGregor vs. State (1860) 16 Ind. 9, 11 the Court makes the unequivocal statement that it is a general proposition that separate felonies should not be charged in the same indictment. In the case of Griffith vs. State (1871) 36 Ind. 406, 407 the Court said that counts for wholly dissimilar felonies cannot be united.

It is also interesting to note that the Criminal Code of the State of Indiana providing for joinder of counts in an indictment or affidavit as embodied in Burns Indiana Statutes, Volume 4, Part 1 (1956 Repl.), Sections 9--1112 to 9--1114 inclusive make no provision in substance or in fact for joinder of counts charging kidnaping and robbery in the same affidavit. affidavit.

Misjoinder of separate counts in an indictment or affidavit are property tested by a motion to quash, and where separate and distinct felonies have been improperly joined the motion to quash should be sustained, State vs. Reichert (1947) 226 Ind. 171, 174; 78 NE (2) 785, 787.

It is respectfully submitted that the alleged crimes of kidnaping and robbery incorporated as counts one and two of the affidavit heretofore filed herein are separate and distinct offenses created by separate statutes under the law of the State of Indiana, and the motion to quash said affidavit by the Defendant, Wilbur R. Davis, should be sustained.'

On January 6, 1964, the State of Indiana filed a Motion to Nolle Count 1 of the affidavit. Such motion, omitting heading and signatures, reads as follows, to-wit:

[249 Ind. 601] 'Comes now, NOBLE R. PEARCY, Prosecuting Attorney for the 19th Judicial Circuit, and moves the Court to enter a nolle prosequi to the indictment or affidavit in the cause of the State of Indiana vs. WILBUR R. DAVIS, GEORGE HENRY WILLIS, RONNIE COLEMAN MURRAY AND JANET ATHERTON, for the following reasons, to-wit: NEW AFFIDAVIT TO BE FILED. THIS MOTION IS DIRECTED TO THE FIRST COUNT ONLY, AND DOES NOT AFFECT OR RELATE TO THE SECOND COUNT IN THIS CAUSE, CHARGING THE DEFENDANTS WITH THE OFFENSE OF KIDNAPPING.'

The court on the same day sustained the State's Motion to Nolle Count 1 of the affidavit.

January 22, 1964, appellant filed a Plea in Abatement to the affidavit. Such Plea omitting caption and signatures, reads as follows, to-wit:

'Comes now Wilbur R. Davis, who being first duly sworn upon his oath, and for answer in abatement to the affidavit heretofore filed herein says:

1. That on or about the 1st day of September, 1962, he was arrested and taken into custody by the Sheriff of Marion County, Indiana, although no warrant

Page 646

of arrest was read to him at said time.

2. That at the time of and at all times subsequent to said arrest he has never been taken before a magistrate as provided by the laws of the State of Indiana.

3. That at the time of said arrest nor at any time subsequent to said arrest he has not been afforded a preliminary hearing as provided by the laws of the State of Indiana.

4. That a formal warrant for his arrest in regard to the charges now on file against him was not issued nor read to him until the 4th day of September, 1962.

5. That an affidavit charging him with violations of the laws of the State of Indiana was not filed until the 4th day of September, 1962.

6. That subsequent to the granting of a change of venue of this cause of action from Marion County, Indiana, to Hancock County, Indiana he has been the subject of adverse and erroneous publicity in newspapers and radio [249 Ind. 602] broadcasts with wide circulation in Hancock County, Indiana, to the extent that he cannot have a fair trial in Hancock County, Indiana.

7. That a document purporting to be the criminal record of one Wilbur R. Davis has been incorporated in and among the papers transmitted to Hancock County, Indiana, from Marion County, Indiana, and has become a part of the public records in this cause of action without precedent or basis to his extreme prejudice.

8. That it is impossible to determine from the certified records in this...

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4 practice notes
  • Brown v. State, No. 469S69
    • United States
    • Indiana Supreme Court of Indiana
    • October 8, 1970
    ...or the credibility of witnesses, it is an invasion of the province of the jury for the court to direct a verdict. Davis v. State (1968), 249 Ind. 596, 233 N.E.2d 642; State v. Patsel (1960), 240 Ind. 240, 163 N.E.2d 602; State v. Torphy (1940), 217 Ind. [255 Ind. 53] 383, 28 N.E.2d 70; Stat......
  • Davis v. State, No. 574S97
    • United States
    • Indiana Supreme Court of Indiana
    • July 11, 1975
    ...jury and sentenced to life imprisonment. A direct appeal was prosecuted and determined against him by this Court. Davis v. State (1968), 249 Ind. 596, 233 N.E.2d ISSUE I. The petitioner's claim of incompetence of counsel and ineffective representation Page 740 amounting to a denial of due p......
  • Franklin v. State, No. 676S186
    • United States
    • July 21, 1977
    ...the weight to be given evidence of the credibility of witnesses, it is improper to direct a verdict. Davis v. State, (1968) 250 Ind. 54, 233 N.E2d 642; State v. Patsel, (1960) 240 Ind. 240, 163 N.E.2d 602; State v. Torphy, (1940), 217 Ind. 383, 28 N.E.2d " * * * Although the State was ......
  • Griffin v. State, No. 671S193
    • United States
    • Indiana Supreme Court of Indiana
    • August 8, 1972
    ...witnesses. See, Schmidt v. State (1970), Ind., 265 N.E.2d 219; Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493; Davis v. State (1968), 249 Ind. 596, 233 N.E.2d 642. No error resulted from the admission of the heroin into We also find no merit in appellant's contention that the evidence ......
4 cases
  • Brown v. State, No. 469S69
    • United States
    • Indiana Supreme Court of Indiana
    • October 8, 1970
    ...or the credibility of witnesses, it is an invasion of the province of the jury for the court to direct a verdict. Davis v. State (1968), 249 Ind. 596, 233 N.E.2d 642; State v. Patsel (1960), 240 Ind. 240, 163 N.E.2d 602; State v. Torphy (1940), 217 Ind. [255 Ind. 53] 383, 28 N.E.2d 70; Stat......
  • Davis v. State, No. 574S97
    • United States
    • Indiana Supreme Court of Indiana
    • July 11, 1975
    ...jury and sentenced to life imprisonment. A direct appeal was prosecuted and determined against him by this Court. Davis v. State (1968), 249 Ind. 596, 233 N.E.2d ISSUE I. The petitioner's claim of incompetence of counsel and ineffective representation Page 740 amounting to a denial of due p......
  • Franklin v. State, No. 676S186
    • United States
    • July 21, 1977
    ...the weight to be given evidence of the credibility of witnesses, it is improper to direct a verdict. Davis v. State, (1968) 250 Ind. 54, 233 N.E2d 642; State v. Patsel, (1960) 240 Ind. 240, 163 N.E.2d 602; State v. Torphy, (1940), 217 Ind. 383, 28 N.E.2d " * * * Although the State was ......
  • Griffin v. State, No. 671S193
    • United States
    • Indiana Supreme Court of Indiana
    • August 8, 1972
    ...witnesses. See, Schmidt v. State (1970), Ind., 265 N.E.2d 219; Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493; Davis v. State (1968), 249 Ind. 596, 233 N.E.2d 642. No error resulted from the admission of the heroin into We also find no merit in appellant's contention that the evidence ......

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