Doss v. State, No. 869S180

Docket NºNo. 869S180
Citation267 N.E.2d 385, 256 Ind. 174
Case DateMarch 16, 1971
CourtSupreme Court of Indiana

Page 385

267 N.E.2d 385
256 Ind. 174
Ralph Leroy DOSS, Jr., Appellant,
v.
STATE of Indiana, Appellee.
No. 869S180.
Supreme Court of Indiana.
March 16, 1971.

[256 Ind. 176]

Page 387

Bayliff, Harrigan, Cord & Maugans, Kokomo, George L. Hanna, Lafayette, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

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, [256 Ind. 177] 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.'

'Tenth. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.'

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

Page 388

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:

[256 Ind. 178] '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.

'Ninth. For omitting a statement of the value or price of any matter or thing or the amount of damages or injury in any case where the value or the price or the amount of damages or injury is not of the essence of the offense.'

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 [256 Ind. 179] 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....

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28 practice notes
  • People v. Marquez, No. 82SA307
    • United States
    • Colorado Supreme Court of Colorado
    • December 17, 1984
    ...N.E.2d 267 (1971) (admission of bullet not violative of privilege when officer witnessed removal and testified to same); Doss v. State, 256 Ind. 174, 267 N.E.2d 385 (1971) (removed bullet not subject to privilege where sheriff observed removal and testified to same). Therefore, the officers......
  • Lawson v. State, No. 1177S797
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1980
    ...the accused is charged as a principal, assuming the evidence supports such instructions. Abrams v. State, supra; Doss v. State, (1971) 256 Ind. 174, 267 N.E.2d While the evidence will be discussed more fully in subsequent portions of this opinion, we note for purposes of this issue that sev......
  • Kelsie v. State, No. 1274S241
    • United States
    • Indiana Supreme Court of Indiana
    • September 21, 1976
    ...the controlling principle here remains. We can find no reversible error if the Appellant was not prejudiced. Cf. Doss v. State (1971), 256 Ind. 174, 267 N.E.2d 385. The language complained of here is not of the character sufficient to render the indictment defective and we can find no error......
  • Candler v. State, No. 576S164
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1977
    ...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 burglar......
  • Request a trial to view additional results
28 cases
  • People v. Marquez, No. 82SA307
    • United States
    • Colorado Supreme Court of Colorado
    • December 17, 1984
    ...N.E.2d 267 (1971) (admission of bullet not violative of privilege when officer witnessed removal and testified to same); Doss v. State, 256 Ind. 174, 267 N.E.2d 385 (1971) (removed bullet not subject to privilege where sheriff observed removal and testified to same). Therefore, the officers......
  • Lawson v. State, No. 1177S797
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1980
    ...the accused is charged as a principal, assuming the evidence supports such instructions. Abrams v. State, supra; Doss v. State, (1971) 256 Ind. 174, 267 N.E.2d While the evidence will be discussed more fully in subsequent portions of this opinion, we note for purposes of this issue that sev......
  • Kelsie v. State, No. 1274S241
    • United States
    • Indiana Supreme Court of Indiana
    • September 21, 1976
    ...the controlling principle here remains. We can find no reversible error if the Appellant was not prejudiced. Cf. Doss v. State (1971), 256 Ind. 174, 267 N.E.2d 385. The language complained of here is not of the character sufficient to render the indictment defective and we can find no error......
  • Candler v. State, No. 576S164
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1977
    ...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 burglar......
  • Request a trial to view additional results

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