Dudley v. State, No. 268S39

Docket NºNo. 268S39
Citation263 N.E.2d 161, 255 Ind. 176
Case DateOctober 28, 1970
CourtSupreme Court of Indiana

Page 161

263 N.E.2d 161
255 Ind. 176
Charles DUDLEY, Appellant,
v.
STATE of Indiana, Appellee.
No. 268S39.
Supreme Court of Indiana.
Oct. 28, 1970.

[255 Ind. 177] Frederick J. Graf, Indianapolis, for appellant.

Theodore Sendak, Atty. Gen., Walter E. Bravard, Jr., Deputy Atty. Gen., for appellee.

Page 162

ARTERBURN, Judge.

This is an appeal from the Marion County Criminal Court, Division 1. The appellant and two other man were charged by affidavit with committing a robbery on or about December 22, 1975. Appellant was found guilty as charged by a jury of the crime of robbery.

The evidence introduced at the trial indicates that on December 22, 1965, three men entered Oscar's Loan Company at 356 Indiana Avenue, Indianapolis, Indiana. The business was being operated at the time of the robbery by Jerome Patsinger. One of the three men asked to see a ring that had previously been shown to him. Patsinger proceeded to get the ring from a safe and as he turned around he was confronted by one of the men holding a .45 caliber pistol. Patsinger and the other employees of the store were marched to the back of the storeroom, where the men took Patsinger's ring and wallet, and then made him lie down on the floor. The other employees were also told to lie down. The police were summoned shortly after the three men left the loan office.

Patsinger testified that the drawers of the cash register, the drawers in the Loan Department, the layaway safe, and [255 Ind. 178] the pawn safe were open and that approximately $2,200 in cash and between 150 and 200 items of jewelry were missing.

Appellant alleges the trial court denied appellant a fair trial in allowing the State of Indiana to amend its affidavit on the day of trial. The affidavit, prior to the correction, read as follows:

'* * * which property the same Jerome Patsin(g)er then and there unlawfully held in his possession and was then and there the property of Oscar's Loan Office, Inc., * * *'

Appellant objects to changing the word 'unlawfully' to 'lawfully.' Inasmuch as both the crime alleged to have been committed and the defenses available were not affected by the amendment to the affidavit, this is a change in form rather than in substance. This is in accordance with our decision in Smith v. State (1969), Ind., 246 N.E.2d 765, where a conviction was upheld that arose out of this same robbery. We stated in Smith v. State (1969), Ind., 246 N.E.2d 765, 766:

'It is not necessary to allege whether the person from whom the property is taken holds the property lawfully or unlawfully, and in our opinion such an allegation is immaterial, it being possible that one holding property unlawfully could be the victim of a robbery. State v. Pokini (1961), 45 Haw. 295, 367 P.2d 499, 89 A.L.R.2d 1421; State v. Wales (1929), 168 La. 322, 122 So. 52.

'The evidence, so far as putting the person in fear and taking the property from such person, would be the same in either instance. To us the amendment permitted by the court in this case comes clearly within Burns' § 9-1133 and is one of form and not substance and the defendant was not harmed thereby.

'Under Dixon v. State (1945), 223 Ind. 521, 62 N.E.2d 629, a reswearing of the original affiant is not required in the case of such technical or minor amendments, even though the trial has begun. In the case before us the trial had not yet started.'

[255 Ind. 179] We find no error in the court permitting the amendment.

Appellant also contends he was deprived of a fair trial because the judge permitted the police officer who was assigned to the investigation to remain in the courtroom and then later to testify even though the prosecution's motion for separation of witnesses was granted by the court. Here, we need only point out that the trial court granted the State's request that said police office, Lieutenant Dabner, be permitted to remain in the courtroom. During

Page 163

the trial, appellant made no objection to the court's action and therefore cannot raise this objection for the first time on appeal. Tyler v. State (1968), 250 Ind. 419, 236 N.E.2d 815; Jones et ux. v. Stwicki, et ux. (1953), 233 Ind. 272, 111 N.E.2d 718. Separation of witnesses is a matter within the discretion of the trial court and such rulings will not be disturbed unless there is a manifest abuse of said discretion. 28...

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20 practice notes
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Enero 2001
    ...See Chambers v. State, 422 N.E.2d 1198, 1204 (Ind.1981); Smith v. State, 272 Ind. 34, 36, 395 N.E.2d 789, 790 (1979); Dudley v. State, 255 Ind. 176, 182, 263 N.E.2d 161, 164 (1970). This Court has further determined that a juror who records notes at home is a "closely related matter" to a j......
  • Hollins v. State, No. 55433
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 11 Octubre 1978
    ...favor of one party to the lawsuit. 8 For later Indiana cases holding note-taking discretionary with the trial court, see Dudley v. State, 263 N.E.2d 161, 164 (Ind.1970); Gann v. State, 330 N.E.2d 88 (Ind.1975). 9 In Denson v. Stanley, 17 Ala.App. 198, 84 So. 770 (1919), the court held that ......
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • 5 Marzo 1982
    ...is violated are within the discretion of the trial court. Rinard v. State, (1976) 265 Ind. 56, 351 N.E.2d 20; Dudley v. State, (1970) 255 Ind. 176, 263 N.E.2d 161. In this case, defendant had ample opportunity to cross-examine Officer Ambroise. Defendant had not asked to have Lindsey exempt......
  • Miresso v. State, No. 2--873A189
    • United States
    • Indiana Court of Appeals of Indiana
    • 20 Febrero 1975
    ...and admonished to stop, and if the juror ceased the writing activity, the error has been deemed harmless. See, Dudley v. State (1970), 255 Ind. 176, 263 N.E.2d 161; Cluck v. State (1872), 40 Ind. 263; Batterson v. State (1878), 63 Ind. 531; Long et al. v. State (1884), 95 Ind. But if a juro......
  • Request a trial to view additional results
20 cases
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Enero 2001
    ...See Chambers v. State, 422 N.E.2d 1198, 1204 (Ind.1981); Smith v. State, 272 Ind. 34, 36, 395 N.E.2d 789, 790 (1979); Dudley v. State, 255 Ind. 176, 182, 263 N.E.2d 161, 164 (1970). This Court has further determined that a juror who records notes at home is a "closely related matter&qu......
  • Hollins v. State, No. 55433
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 11 Octubre 1978
    ...favor of one party to the lawsuit. 8 For later Indiana cases holding note-taking discretionary with the trial court, see Dudley v. State, 263 N.E.2d 161, 164 (Ind.1970); Gann v. State, 330 N.E.2d 88 (Ind.1975). 9 In Denson v. Stanley, 17 Ala.App. 198, 84 So. 770 (1919), the court held that ......
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • 5 Marzo 1982
    ...is violated are within the discretion of the trial court. Rinard v. State, (1976) 265 Ind. 56, 351 N.E.2d 20; Dudley v. State, (1970) 255 Ind. 176, 263 N.E.2d 161. In this case, defendant had ample opportunity to cross-examine Officer Ambroise. Defendant had not asked to have Lindsey exempt......
  • Miresso v. State, No. 2--873A189
    • United States
    • Indiana Court of Appeals of Indiana
    • 20 Febrero 1975
    ...and admonished to stop, and if the juror ceased the writing activity, the error has been deemed harmless. See, Dudley v. State (1970), 255 Ind. 176, 263 N.E.2d 161; Cluck v. State (1872), 40 Ind. 263; Batterson v. State (1878), 63 Ind. 531; Long et al. v. State (1884), 95 Ind. But if a juro......
  • Request a trial to view additional results

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