Doss v. State, 869S180
| Decision Date | 16 March 1971 |
| Docket Number | No. 869S180,869S180 |
| Citation | 267 N.E.2d 385,256 Ind. 174 |
| Parties | Ralph Leroy DOSS, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Bayliff, Harrigan, Cord & Maugans, Kokomo, George L. Hanna, Lafayette, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., for appellee.
Defendant was charged with second degree burglary and burglary by taking a safe. The trial court found him guilty of both charges and the court sentenced him to the Indiana State Reformatory at Pendleton, Indiana for not less than two (2) years nor more than five (5) years on the charge of second degree burglary and for a period of not less than five (5) years nor more than ten (10) years on the charge of burglary by taking a safe. It was ordered that the sentences were to run concurrently.
On October 22, 1967 at about 10:00 p.m., David Gullion, a police officer of Lafayette, went to the Forty and Eight Club to investigate a reported burglary. As officer Gullion approached the Club he observed a truck leaving the club entrance at a high rate of speed. Officer Gullion pursued the truck into a nearby field where he fired several shots at the truck. The occupants of the truck fled in the dark and none were apprehended. A large safe was found laying in the truck's path in the field near the parked truck. The truck was searched, and among articles found was a driver's license issued to one Ralph Leroy Doss, Jr., and a vehicle registration also issued to Ralph Leroy Doss, Jr. The appellant was apprehended the next day. John Rusk, Tippecanoe County Deputy Sheriff, took Doss to the Home Hospital to have an injury to Doss's head x-rayed that day. The x-ray revealed an object implanted in his head. While Doss was conscious, a surgeon, Dr. Richard C. McPherson, removed a bullet from Doss's head. Dr. McPherson gave the bullet to Deputy Sheriff Rusk.
Appellant first alleges that the trial court erred in overruling his motion to quash the charging affidavit. Appellant alleges that the affidavit did not state facts constituting a public offense and that the offense was not stated with sufficient certainty. Appellant alleges the affidavit is defective in nine (9) specific instances. As none of the alleged defects are such that they prejudiced the appellant's substantial rights, the alleged defects are not such that a refusal to sustain the motion to quash was reversible error.
In this respect the appellant first contends:
(1) That the indictment was fatally defective because the names of the material witnesses were not endorsed on the affidavit. Burns' Indiana Stat.Ann. § 9--1127, provides in part:
'Immaterial defects.--No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed, nor shall the trial, judgment or other proceeding, be stayed, arrested or in any manner affected for any of the following defects.'
As the appellant was promptly supplied with a list of material witnesses on request, the possibility of any prejudice to the appellant was thereby eliminated and the allegation is without merit.
(2)(3) Appellant alleges that Count I of the affidavit, charging the appellant with second degree burglary, was defective because it failed to state the value of the property over which the appellant intended to obtain control. Burns' Indiana Stat.Ann., § 9--1127 provides in part:
'Immaterial defects.--No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed, nor shall the trial, judgment or other proceeding, be stayed, arrested or in any manner affected for any of the following defects.
No one could allege with certainty what particular property a defendant charged with burglary intended to take if arrested after the breakin but before anything was taken. The value of the property was not 'of the essence of the offense' and therefore the failure to state such was not fatal. Passwater v. State (1967), 248 Ind. 454, 229 N.E.2d 718; Heacock v. State (1968), 249 Ind. 453, 233 N.E.2d 179. In conjunction with this allegation the appellant alleges that Burns' Indiana Stat.Ann. §§ 10--3030 and 10--3039 are unconstitutional. As the value of the property is not of the essence of the offense of second degree burglary, the constitutionality of the statutes need not be discussed.
(4) Appellant alleges that failure to describe the property which appellant intended to take is a fatal defect in the affidavit charging second degree burglary. It is not necessary in an affidavit charging second degree burglary to describe the thing or things intended to be stolen. Stokes v. State (1953), 233 Ind. 300, 119 N.E.2d 424; Suter v. State (1949), 227 Ind. 648, 88 N.E.2d 386.
(5) Appellant alleges that it was improper to join the offense of second degree burglary and burglary by taking a safe in the same affidavit. Clearly, Indiana has chosen to make second degree burglary and burglary by taking a safe separate crimes. Burns' Indiana Stat.Ann. § 10--701(b) provides the sanction for second degree burglary, while Burns' Indiana Stat.Ann. § 10--702a provides the sanction for burglary by taking a safe. While they are separate crimes, they are of the same character and in the instant case they grew from the same act; as such, they may be joined as separate counts on the same affidavit. This Court stated in Lawson v. State (1931), 202 Ind. 583, 586, 177 N.E. 266, 267:
'District offenses of a different character, or inconsistent offenses, cannot be joined in separate counts of the same affidavit, but different crimes of the same character growing out of the same transaction, may be so charged.' (emphasis added)
(6) Appellant alleges that the words 'unlawfully, feloniously and burglariously' are unnecessary, surplusage and prejudicial. These are words in common use in charging a crime. However, Burns' Ind.Stat.Ann., § 9--1127 states in part:
'Immaterial defects.--No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed, nor shall the trial, judgment or other proceeding, be stayed, arrested or in any manner affected for any of the following defects:
The fact that the words are unnecessary surplusage alone is insufficient to render the affidavit defective. However, if the surplusage is manifestly detrimental to the accused, the affidavit would be defective. Torphy v. State (1918), 187 Ind. 73, 118 N.E. 355. The words alleged to be prejudicial in the instant case are not in our opinion of the prejudicial character sufficient to render the affidavit defective.
(7) Appellant alleges that the words 'property of' as used in the affidavit, do not sufficiently inform him of the relationship between the Forty and Eight Club and the property. We need not give this point serious consideration. Lynch v. State (1959), 240 Ind. 376, 165 N.E.2d 762.
(8) Appellant contends that the misspelling of the word 'et' (french meaning 'and') in the name of the corporate-owner of the property creates a fatal defect. The word was spelled 'it' and was obviously a mere typographical error. The corporation's name was Voiture 364 Societe des Quarente Hommes et Huit Chevaux, Inc. (emphasis added to indicate the misspelled word). Froedge v. State (1968), 249 Ind. 438, 233 N.E.2d 631. There is no merit in this contention; appellant shows no prejudice.
(9) Appellant alleges that the affidavit charging the appellant with burglary by taking a safe was vague and uncertain. It appears to this Court that the affidavit clearly states the essential elements of the offense, as set forth in Burns' Indiana Stat.Ann. § 10--702a, is not repugnant, vague or uncertain.
Appellant next alleges that the trial court erred in overruling his motion to compel the State to elect to proceed on only one of the two crimes charged. Appellant contends that the State is required to charge an individual with only one crime for the commission of one wrongful act. Appellant's contention would be correct had the State charged Doss with the same offense twice...
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