DeWeese v. State

Citation31 Ind.Dec. 47,258 Ind. 520,282 N.E.2d 828
Decision Date30 May 1972
Docket NumberNo. 871S231,871S231
PartiesRobert E. DeWEESE, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

John D. Clouse, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Appellant was charged with the crime of robbery. Trial by jury resulted in a verdict of guilty as charged. Appellant was sentenced to the Indiana Youth Center for a term of not less than ten nor more than twenty-five years.

The record discloses the following:

On October 24, 1970, at about 11:45 P.M. Lloyd W. Reich was walking on the sidewalk beside the Vendome Hotel in Evansville, Indiana. An automobile stopped at the curb, a man later identified as the appellant jumped out of the back seat, stuck a gun in Mr. Reich's ribs and said 'I want some money.' Mr. Reich at first told appellant that he did not have any money, but as appellant became more threatening Mr. Reich gave him $15. Appellant continued to threaten Mr. Reich insisting that he give him more money. Appellant then pulled the trigger on the gun, but it was either not loaded or a shell misfired. Mr. Reich then grabbed the gun, but appellant was successful in pulling it from his grasp. Appellant then struck Mr. Reich on the side of the head with the gun. Appellant then returned to the car, which was driven away.

A report was made to police officers leading eventually to the arrest of the appellant. The record is silent as to exactly how or when the appellant was actually taken into custody. However, we know from the record that appellant was in custody on October 30, 1970, at which time he was identified in a police lineup in the city of Evansville by Mr. Reich. As a result of this identification the charge of robbery against the appellant was filed on the 4th day of November, 1970, and on the same day there was a finding of probable cause and a warrant for arrest issued by the Justice of the Peace of Pidgeon Township, Vanderburgh County.

Appellant first claims the trial court erred in failing to swear the bailiff before the jury was placed in his charge for their deliberation. Appellant makes no claim that such failure to swear the bailiff resulted in any prejudice to him. Merely because the court did not swear the bailiff we cannot presume the bailiff engaged in any misconduct without specific allegations of such. Burns' Ind.Stat., 1956 Repl., § 9--2320, IC 1971, 35--1--47--9, reads as follows:

'In consideration of the questions which are presented upon an appeal, the court shall not regard technical errors or defects, or exceptions to any decision or action of the trial court, which did not, in the opinion of the court to which the appeal is taken, prejudice the substantial rights of the defendant. (Acts 1905, ch. 169, § 334, p. 584.)'

We hold the above statute to be applicable in this situation where appellant has failed to demonstrate any prejudice to his substantial rights. We might further point out appellant was in the court and represented by counsel at the time the jury retired in the custody of the bailiff. He could have at that time insisted that the bailiff be sworn as required by statute. We will not permit him to sit idly by and then raise such a technicality as ground for reversal on appeal.

Appellant next claims he was deprived of his constitutional rights in that after the jury retired for deliberation the bailiff conducted the jury on a visit to the Vanderburgh County jail. Appellant contends this irregularity was prejudicial to him in view of argument by his counsel to the jury at the close of the trial. He called the jury's attention to the bad effects of incarceration in prison and discussed the conditions in Indiana prisons. He urges that for the jury then to be conducted on a tour of the Vanderburgh County jail, which is a new facility less than two years old, was in effect in rebuttal of counsel's argument. The information concerning the alleged tour of the Vanderburgh County jail by the jury first came to the attention of the trial court in appellant's motion to correct errors, together with an affidavit by the appellant; however, the affidavit does not disclose by what means the defendant acquired his information. The appellee points out that if the appellant acquired his information from the bailiff, he should have supplied the affidavit of the bailiff, or if it was acquired from some person other than the bailiff or a member of the jury that person's affidavit should have been obtained.

Appellee further points out that it would have been improper for a member of the jury to have given such information for this Court has previously stated that affidavits by jurors will not be received for the purpose of impeaching their verdict. Krivanek v. State (1969), 252 Ind. 277, 247 N.E.2d 505, 17 Ind.Dec. 489.

The content of appellant's affidavit in this case does not demonstrate other than hearsay evidence and as such furnishes no legal proof of the alleged misconduct. Hutchins v. State (1898), 151 Ind. 667, 52 N.E. 403. We would not be justified in overturning the verdict of the jury on such an affidavit alone. Davis v. State (1967), 249 Ind. 426, 231 N.E.2d 230, 12 Ind.Dec. 152.

Appellant next argues the verdict was not supported by sufficient evidence in that there is no evidence that appellant put Lloyd W. Reich in fear. In view of the facts above recited as shown by the record, this arguments is almost ludicrous. The question of whether or not Mr. Reich was placed in fear was a question for the jury. It seems almost too obvious for comment to state that the jury was justified in believing that Mr. Reich had been put in fear. It would certainly be a most unusual and most unreasonable man who would not be placed in fear if, while walking down a public sidewalk, he was suddenly confronted by a man with a gun, who pushed the gun into his side, demanded his money, then after receiving $15 continued to demand more money and, in fact, pulled the trigger on the gun which did not fire, and in the ensuing struggle for the gun was struck in the face by his assailant. These facts warrant the jury's finding of fear on the part of Mr. Reich. MacTate v. State (1971), Ind., 267 N.E.2d 76, 24 Ind.Dec. 624; Koby v. State (1935), 209 Ind. 91, 198 N.E. 88.

Appellant next claims the trial court erred in overruling his motion to dismiss. In his motion to dismiss appellant took the position that the arrest warrant was issued without a showing of probable cause in violation of Article 1, § 11 of the Constitution of Indiana, citing Kinnaird v. State (1968), 251 Ind. 506, 242 N.E.2d 500, 16 Ind.Dec. 250. As above recited appellant was already in custody by previous arrest, the nature of which is not disclosed by this record, at the time the charging affidavit in the case at bar was filed and the arrest warrant issued. This Court has previously stated that where a person is already under arrest at the time an arrest warrant is issued the law set forth in the Kinnaird decision does not govern. See James et al. v. State (1972), 281 N.E.2d 469, decided by this Court on the 26th day of April, 1972. See also State ex rel. French v. Hendricks Superior Court (1969), 252 Ind. 213, 247 N.E.2d 519, 17 Ind.Dec. 554; Rector v. State (1971), Ind., 271 N.E.2d 452, 26 Ind.Dec. 335. As was pointed out in Rector, supra, even if we would assume the arrest of the appellant was illegal, such fact would in no way affect the judgment of conviction. The only effect of an illegal arrest is that evidence obtained thereby may be suppressed. The jurisdiction of the court over a person is not terminated by an illegal arrest. Rector v. State, supra.

Appellant next claims the trial court erred in overruling his special plea to the effect that the statute under which the state prosecuted the appellant was in fact repealed by the 1971 Indiana General Assembly at the time it adopted the Indiana Code of 1971. This Court has previously held that the Indiana Code of 1971 was merely a compilation of the existing law of the State of Indiana; that the existing law as recognized in Title 1, Article 1, Chapter...

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18 cases
  • Carpenter v. State
    • United States
    • Indiana Appellate Court
    • 2 d3 Agosto d3 1978
    ...regardless of whether the subsequently filed affidavit was sufficient. Mendez v. State (1977), Ind., 367 N.E.2d 1081; DeWeese v. State (1972), 258 Ind. 520, 282 N.E.2d 828. Appellant's principal contention, and that presented in the motion to suppress heard by the trial court, is that the s......
  • LeFlore v. State
    • United States
    • Indiana Appellate Court
    • 9 d4 Agosto d4 1973
    ...was effective August 18, 1969, and remained in effect until the Acts of 1971 became effective September 2, 1971. DeWeese v. State (1972), Ind., 282 N.E.2d 828, 31 Ind.Dec. 47, decided some three weeks after LeFlore's direct appeal was decided, fully supports his contention. Furthermore Vawt......
  • Burton v. State
    • United States
    • Indiana Supreme Court
    • 26 d1 Fevereiro d1 1973
    ...and I stabbed him.' (Our emphasis.) Furthermore, an inference of fear can be reasonably drawn from an act of robbery. See DeWeese v. State (1972), Ind., 282 N.E.2d 828. In fact, to infer otherwise would border on the absurd. We believe the evidence sufficiently establishes that the money wa......
  • France v. State, 1-178A23
    • United States
    • Indiana Appellate Court
    • 22 d4 Março d4 1979
    ...on that lesser included offense. There is no dispute that robbery is a lesser included offense of armed robbery. DeWeese v. State, (1972) 258 Ind. 520, 282 N.E.2d 828. We make that determination based, not only on the statutory language defining the elements of each offense, but also on the......
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