Dunlap v. State

• Decision Date: 30 March 1932
• Docket Number: 25,893
• Citation: 180 N.E. 475,205 Ind. 384
• Parties: Dunlap v. State of Indiana
• Court: Indiana Supreme Court

180 N.E. 475

205 Ind. 384

Dunlap v. State of Indiana

No. 25,893

Supreme Court of Indiana

March 30, 1932

Rehearing Denied January 2, 1933. Petition for Writ of Error Coram Nobis Dismissed July 29, 1933.

1. APPEALS---Bills of Exceptions---Leave to File After Term.---When a general bill of exceptions containing the evidence is to be filed after the term, leave therefor must be given by the court at the time of ruling on the motion for new trial, and time therefor cannot be granted on a day subsequent to such ruling. p. 388.

2. APPEALS---Bills of Exceptions---Improperly Filed---Present No Question.---Where general bill of exceptions containing the evidence was filed after term at which motion for new trial was overruled without leave therefor having been granted on same day as ruling on motion for new trial, such bill of exceptions was not properly filed and presented no question on appeal. p. 388.

3. CRIMINAL LAW---Appeal---Consolidating Several Indictments---General Verdict.---Where accused agreed to consolidation of three indictments based on same transaction and they were treated as separate counts of one indictment accused could not complain of general verdict instead of separate findings on each indictment or count. p. 389.

4. CRIMINAL LAW---Indictment---Several Counts---Verdict.---Where an indictment is in several counts charging the same offense the jury need not find specially as to each count but may return a general verdict. p. 389.

5. INDICTMENT AND AFFIDAVIT---Facts Charged---Variance.---An indictment in Newton County charging defendants "then and there" conspired to rob a bank at Rensselaer Indiana, held to sufficiently charge that the bank to be robbed was in Jasper County and not in Newton County, since it is judicially known that Rensselaer is in Jasper County. p. 392.

6. CRIMINAL LAW---Witnesses---Competency---"Conspirator."---An active conspirator in the commission of a felony is an accomplice, and, under 2267, cl. 3, Burns 1926, is a competent witness. p. 392.

7. APPEALS---Evidence Not in Record---Questions Dependent Thereon Not Presented.---Where the evidence is not in the record no question is presented by assignments in the motion for new trial that the verdict is contrary to law and is not sustained by sufficient evidence. p. 393.

8. APPEALS---Briefs---Abstract Propositions of Law.---Abstract propositions of law stated in appellant's brief cannot be considered where the particular defects complained of are not pointed out and the propositions applied thereto, p. 393.

9. INDICTMENT AND AFFIDAVIT---Particularity---Sufficiency.---The rule requiring particularity in criminal pleading is satisfied when the transaction is identified with sufficient certainty to enable defendant to plead his conviction or acquittal in bar of another prosecution for the same offense. p. 394.

10. INDICTMENT AND AFFIDAVIT---Particularity---As to Names of Third Persons.---An indictment charging conspiracy to rob a bank by confining and putting in fear officers and employees therein, held sufficient without naming such persons or stating that their names were to the grand jury unknown, the conspiracy being to rob the bank and not the officers and no prejudice to accused being shown, p. 394.

11. CRIMINAL LAW---Trial---General Verdict.---A verdict of "guilty as charged in the indictment" is a verdict that the defendant is guilty of the crime or offense or offenses charged in the indictment and such a general verdict is not defective, p. 396.

From Newton Circuit Court; E. M. Hawkins, Special Judge.

John A. Dunlap was convicted of a conspiracy to commit bank robbery, and he appealed.

Affirmed.

John M. Spangler, L. C. Holland, Fraser & Isham, Joe W. Todd, and Joseph H. Conroy, for appellant.

James M. Ogden, Attorney-General, E. Burke Walker, Deputy Attorney-General, Moses Leopold, and Charles A. Halleck, for the State.

Roll J. Martin, J., not participating.

OPINION

Roll, J.

The Grand Jury of Newton County returned three indictments against appellant and one Jerry Randerson. The first and third indictments charged the crime of conspiracy to rob the State Bank of Rensselaer, Rensselaer, Indiana, and the second charged conspiracy to commit grand larceny. The indictments were numbered 2425, 2426 and 2427, respectively. The three indictments, omitting the formal parts, are as follows:

"No. 2425. The Grand Jurors of Newton County, in the State of Indiana, good and lawful men, duly and legally impaneled, charged and sworn to inquire into felonies and certain misdemeanors in and for the body of said County of Newton, in the name and by the authority of the State of Indiana, on their oath present, that JERRY RANDERSON and JOHN DUNLAP, late of said County, on the 1st day of OCTOBER, A. D., 1927, at said County and State aforesaid, did then and there unlawfully, knowingly, and feloniously unite, combine, conspire, confederate and agree to and with each other, for the object and then and there unlawfully and feloniously and with the intent to commit the crime of larceny, to-wit: To unlawfully and feloniously steal, take, and carry away certain bonds and money of the State Bank of Rensselaer, Indiana, confine and attempt and threaten to confine, kill, maim, injure and wound, and put in fear certain persons then and there being in said State Bank of Rensselaer, Indiana, for the purpose of stealing from said State Bank of Rensselaer, Indiana, money, bonds, and other valuables then and there being. Contrary to the form of the Statute, etc. . .

"No. 2426. The Grand Jurors of Newton County, in the State of Indiana, good and lawful men, duly and legally impaneled, charged and sworn to inquire into felonies and certain misdemeanors in and for the body of said County of Newton, in the name and by the authority of the State of Indiana, on their oath present, that JERRY RANDERSON and JOHN DUNLAP, late of said County, about the 1st day of OCTOBER, A. D., 1927, at said County and State aforesaid, did, then and there unlawfully, feloniously, and knowingly unite, agree, conspire, confederate and combine to and with each other, for the object and purpose and with the unlawful and felonious intent then and there, to unlawfully and feloniously take, steal, and carry away lawful money of the United States of the value of $ 7,000.00, the property of the State Bank of Rensselaer, Rensselaer, Indiana. Contrary to the form of the Statute, etc. . .

"No. 2427. The Grand Jurors of Newton County in the State of Indiana, good and lawful men duly and legally impaneled, charged and sworn to inquire into felonies and certain misdemeanors in and for the body of said County of Newton, in the name and by the authority of the State of Indiana, on their oath present, that JERRY RANDERSON and JOHN DUNLAP, late of said County, on or about the 1st day of OCTOBER, A. D., 1927, at said County and State aforesaid did, then and there unlawfully, feloniously, and knowingly unite, agree, conspire, confederate, and combine to and with each other, for the object and purpose and with the unlawful and felonious intent to unlawfully and feloniously; and with the intent to commit the crime of larceny; attempt and threaten to maim, injure, and wound certain officials and employees of the State Bank of Rensselaer, Rensselaer, Indiana, and to put said officials and employees in fear, with the intent and for the purpose then and there to unlawfully and feloniously steal, take, and carry away money, bonds, and other valuables of the State Bank of Rensselaer. . . Contrary to the form of Statute, etc. . .".

Appellant was arrested, gave bond, and filed his affidavit for a change of venue from the judge which was granted.

By agreement of the parties the three indictments were consolidated under cause No. 2427. Appellant filed no motion to quash, and upon his plea of "not guilty" the cause was submitted to a jury which returned a verdict of guilty, which read as follows: "We the jury find the defendant guilty of conspiracy to commit a bank robbery as charged in the indictment herein and that he is 51 years of age."

Appellant filed his motion to be discharged in cause No. 2426 which was sustained. He also filed a motion to be discharged in cause No. 2425 and 2427, which the court overruled. His motion for a new trial was overruled on January 23, 1930, which was the 10th judicial day of the January term of the Newton Circuit Court. Also on the same day appellant's motion in arrest was overruled. On February 6, 1930, being the 22nd judicial day of the January term of said court, appellant filed his motion for a venire facias-de-novo, which was overruled on the same day, and at which time the court entered judgment against appellant, from which judgment appellant prayed an appeal, which was granted, and 60 days given appellant to file his general bill of exceptions. The record further shows that appellant asked and was granted time by the court within which to file his special bills of exceptions Nos. 1, 2, 3 and 5, which were presented to the court within the time allowed. Bill of exception No. 4 containing the instructions was presented in time and is properly in the record. Appellant's general bill of exceptions containing the evidence was presented to the court on March 29, 1930, the same being the 18th judicial day of the March term of the Newton Circuit Court, and that the court signed the same on said date and ordered it filed with the clerk and made a part of the record, which was accordingly done on said day.

It will be observed that appellant's general bill of exceptions containing the evidence was not presented and filed until March 29, 1930, which was the 18th judicial day of the March term of the Newton Circuit Court; that appellant's motion for a new...