Dorsey v. State, 1268S197

• Decision Date: 28 July 1970
• Docket Number: No. 1268S197,1268S197
• Citation: 260 N.E.2d 800,254 Ind. 409,22 Ind.Dec. 204
• Parties: Frank DORSEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 800

260 N.E.2d 800

254 Ind. 409

Frank DORSEY, Appellant, v. STATE of Indiana, Appellee.

No. 1268S197.

Supreme Court of Indiana.

July 28, 1970.

Olsen & Niederhaus, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Murray West, Deputy Atty. Gen., Indianapolis, for appellee.

JACKSON, Judge.

This is an appeal from the judgment of the Vanderburgh Circuit Court wherein the appellant was tried by a jury and convicted of violating the 1935 Narcotic Act as provided in Acts 1935, ch. 280, § 2, p. 1351, as amended by Acts 1961, ch. 90, § 2, p. 169, being Ind.Ann.Stat. § 10--3520 (1969 Supp.).

The amended affidavit charging the appellant with the offense was filed on January 5, 1968, and reads in pertinent part as follows:

'KENNETH P. WOLFE being duly sworn upon his oath says that FRANK DORSEY on or about the 20th day of November A.D., 1967, at said County and State as affiant verily believes did then and there unlawfully and feloniously have in his possession and under his control a certain hypodermic syringe and needle, an instrument adapted for the use of narcotic drugs by injection in a human being, to-wit: one Yevette Staten, and was not authorized by any law of the United States of America or the State of Indiana to have such instrument in his possession or under his control.

Then and there being contrary to the form of the Statute, in such cases made and provided, and against the peace and dignity of the State of Indiana.'

On January 15, 1968, the appellant filed a motion to quash the amended affidavit, which motion was overruled on January 18, 1968. On this same day the appellant waived arraignment, entered a plea of not guilty, and requested a trial by jury.

On April 18, 1968, the appellant filed a motion for change of judge, which was overruled on the same day. On July 3, 1968, the appellant filed another motion for change of judge which motion was also overruled.

On July 8, 1968, the appellant filed a motion entitled 'Motion for Leave to Take Depositions and Order Requiring Prosecutor to Produce Witnesses for Depositions and Trial.' This motion was granted by the trial court, and the taking of the depositions was set for July 17, 1968.

On July 23, 1968, the date set for trial, the appellant moved for a continuance on the grounds that the witnesses failed to appear for the taking of depositions as ordered by the court. The motion for a continuance was overruled, and the cause proceeded to trial.

The jury found the appellant guilty as charged, and he was sentenced by the trial court to a term of one (1) to five (5) years in the Indiana State Prison, and was fined One Thousand Dollars ($1,000.00) and costs.

The appellant's motion for a new trial was filed on August 26, 1968, and overruled on September 3, 1968. The appellant's sole assignment of error on appeal is that the trial court erred in overruling the motion for a new trial.

The appellant's contentions on appeal are that: 1. there is a variance between the allegation contained in the affidavit and the actual proof at trial in that the evidence does not support the allegation that the appellant possessed a hypodermic syringe and needle; 2. the trial court erred in overruling the appellant's motion for a continuance which was filed on July 23, 1968; 3. the trial court erred in overruling the appellant's two motions for a change of judge; 4. the trial court erred in failing to give the appellant's tendered instruction No. 5.

The affidavit with which the appellant was charged alleged that the appellant possessed a '* * * certain hypodermic syringe and needle, an instrument adapted for the use of narcotic drugs by injection in a human being.' State's Exhibit No. 1, purported to be the 'instrument' referred to in the affidavit, consists of a medicine dropper with a black bulb attached to one end, and a hypodermic needle attached to the other end. The statute under which the appellant was charged, § 10--3520, supra, reads in pertinent part as follows:

'(c) It shall be unlawful for any person to possess or have under his control, with intent to violate any provision of this act, any hypodermic syringe or needle or any instrument adapted for the use of narcotic drugs by injection in a human being.'

The appellant contends that the object referred to in the affidavit and introduced at trial as State's Exhibit No. 1 is not a 'hypodermic syringe', but only a medicine dropper and needle, and nothing more. To support his contention the appellant, at trial, called to the witness stand a registered pharmacist who testified that a hypodermic syringe consists of a tapered cylinder, to which a needle is attached, with a plunger. The plunger is used to force the liquid in the cylinder through the needle. The appellant contends that he was misled by the affidavit since he was prepared to offer evidence that he never had a 'hypodermic syringe' in his possession.

A defendant in a criminal trial is entitled to be informed specifically of the crime or crimes with which he is charged so that he may be able to intelligently prepare a defense. State v. Baker (1963), 244 Ind. 150, 191 N.E.2d 499; Loveless v. State (1960), 240 Ind. 534, 166 N.E.2d 864. In determining whether an affidavit states the alleged offense with sufficient clarity the words of the affidavit must be construed in the manner in which they are commonly and ordinarily accepted. Acts 1905, ch. 169, § 173, p. 584, being Ind.Ann.Stat. § 9--1125 (1956).

In the case at bar, the appellant contends that the State alleged in the affidavit that he was in possession of a 'hypodermic syringe', while the evidence at trial established only that the appellant possessed, at the time in question, an eye dropper. The appellant argues that this constituted a material variance since the State failed to prove that the appellant was in possession of a 'hypodermic syringe' as alleged in the affidavit.

We do not agree with the appellant's contentions. Webster's Third New International Dictionary (G. & C. Merriam Co. 1961) defines a 'syringe' as follows:

'1. a device used to inject fluids into or withdraw them from the body or its cavities: as a: a device consisting of a nozzle of varying length and a compressible rubber bulb and used for injection or irrigation.'

Webster's Dictionary, supra, defines a 'hypodermic syringe' as:

'A small syringe used with a hollow needle for injection of material into or beneath the skin.'

The device seized by the police and introduced into evidence as State's Exhibit No. 1 is an eye dropper with a compressible rubber bulb to which is attached a hypodermic needle. Thus, State's Exhibit No. 1 clearly fits the accepted definition of 'hypodermic syringe', and the appellant's contention that there is, in the case at bar, a material variance is utterly without merit.

The appellant next contends that the trial court erred in overruling his oral motion for a continuance which was made on July 23, 1968, the date set for trial of the cause. The basis for the appellant's motion for a continuance was that the witnesses who were ordered to appear at the prosecutor's office on July 17, 1968, for the taking of depositions failed to appear on that date as ordered by the court. In opposition to the motion the prosecution argued that two of the witnesses ordered to appear for the taking of depositions were present in the courtroom and available for trial, and that the appellant failed to show how he was prejudiced. The prosecution argued further that the motion was not timely and should have been made when the witnesses failed to appear as ordered.

The witnesses sought to be examined by the appellant prior to trial were John E. Ferguson and Kenneth P. Wolfe, both of whom were, at the time, Detective Sergeants with the Indiana State Police, and Ernest Ray Powell, who was an inmate of the Indiana State Farm at the time the investigation in question began. Powell's function was to make contacts for Ferguson and Wolfe, and to help them maintain their undercover identity. Powell was present, along with the officers, throughout all of the pertinent events in the investigation. According to the testimony of both Ferguson and Wolfe, Powell was present in the appellant's home on the evening of November 20, 1967, when the appellant was alleged to have been in possession of the hypodermic syringe. Powell, according to Sgt. Ferguson, was also present with Sgt. Wolfe that evening when the appellant allegedly gave an injection to a woman who was present in the appellant's home. Sometime in December, 1967, after the investigation had been completed, Powell a paid convict informant, or agent provocator, was given $500.00 by the State Police and taken to the airport by them where he boarded an airplane for California. The remainder of his sentence at the Indiana State Farm was commuted.

The appellant's 'Motion for Leave to Take Depositions and Order Requiring Prosecutor to Produce Witnesses for Depositions and Trial' reads in pertinent part as follows:

'Comes now the Defendant and moves the Court for an Order granting the Defendant leave to take oral depositions of Ernest Ray Powell, Kenneth P. Wolfe and John E. Ferguson at the time and place set by the Court, and further requests that the Court order the Prosecutor to produce said witnesses for said depositions and for the trial of this case. In support of said motion the Defendant shows unto the Court:

1. That although Ernest Ray Powell is not a witness endorsed on the back of the Prosecutor's Affidavit, the depositions heretofore taken in this case indicate that he made the original contact for Kenneth P. Wolfe and John E. Ferguson.

2. That Ernest Ray Powell was a witness to all the transactions between the Defendant and Kenneth P. Wolfe and John E. Ferguson.

3. That in similar cases hereto Ernest Ray Powell was the moving party in every case of which the Defendant had knowledge and in most instances was a personal friend of the Defendants.

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