Dunlap v. State

• Decision Date: 30 March 1932
• Docket Number: No. 25893.,25893.
• Citation: 205 Ind. 384,180 N.E. 475
• Parties: DUNLAP v. STATE.
• Court: Indiana Supreme Court

205 Ind. 384

180 N.E. 475

DUNLAP

v.STATE.

No. 25893.

Supreme Court of Indiana.

March 30, 1932.

Appeal from Newton Circuit Court; E. M. Hawkins, Special Judge.

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

Affirmed.Isham & Isham, of Fowler, John Spangler, of Winamac, and L. C. Holland, of Gary, for appellant.

James M. Ogden, Atty. Gen., E. Burke Walker, of Indianapolis, and Moses Leopold and Charles A. Halleck, both of Rensselaer, for the State.

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, Ind., 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 impanneled, 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 impanneled, 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 impanneled, 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 the 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 causes No. 2425 and 2427, which the court overruled. His motion for a new trial was overruled on January 23, 1930, which was the tenth 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 twenty-second 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 exceptionsNos. 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 exception containing the evidence was presented to the court on March 29, 1930, the same being the eighteenth 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.

[1] 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 eighteenth judicial day of the March term of the Newton circuit court. That appellant's motion for a new trial was overruled on January 23, 1930, which was the tenth judicial day of the January term of said court, and no time was then given for appellant to file his general bill of exceptions, and the record does not show that appellant asked the court to give him time beyond the term, within which to file his general bill of exceptions containing the evidence, until the 6th day of February, 1930, which was several days subsequent to the day that the motion for a new trial was overruled. 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 the ruling on the motion for a new trial. Section 2330, Burns' 1926; Bass v. State (1918) 188 Ind. 21, 120 N. E. 657;Rose v. State (1909) 171 Ind. 662, 87 N. E. 103, 17 Ann. Cas. 228;State v. Chenoweth (1904) 163 Ind. 94, 71 N. E. 197;Meyers v. State (1904) 163 Ind. 345, 71 N. E. 957;Utterback v. State (1899) 153 Ind. 545, 55 N. E. 420;Robards v. State (1898) 152 Ind. 294, 53 N. E. 234.

Time for filing bill of exceptions containing the evidence cannot be granted on a day subsequent to overruling the motion for a new trial. Rose v. State, supra.

[2] It follows that appellant's general bill of exceptions containing the evidence is not in the record and all questions sought to be presented thereby cannot be considered by this court. These rules are so well established and have been announced so frequently by this court, and so generally understood by the profession, that we do not think it advisable to now change them.

Appellant by his first assignment of error says that the court erred in overruling his motion to be discharged on indictment No. 2425, 2427, but assigns no reason in his motion therefor. In his brief he makes the point that inasmuch as there were three separate indictments, and only one verdict returned attempting to cover two indictments, that he is entitled to be discharged upon application.

[3][4] Under the provisions of section 2210, Burns' 1926 Statutes, it has been held that felonies of the same class, growing out of the same transaction, may be joined in separate counts. McGregor v. State (1860) 16 Ind. 9. The crime of larceny is always contained in the crime of robbery, and under section 2212 the two crimes may be joined in separate counts of an indictment, or under a charge of robbery one may be convicted of larceny. Vancleave v. State (1898) 150 Ind. 273, 49 N. E. 1060. So in this case there seems to be no reason why the grand jury that returned the three separate indictments against appellant could not have consolidated them in one indictment with three separate counts. By agreement of the parties the three indictments were consolidated under one number and tried together, and thereafter during the entire trial it was considered and treated by court and counsel as one indictment in three counts. The instructions tendered by appellant and given by the court treated it that way. Instruction No. 2, tendered by appellant and given by the court, reads in part as follows:

“By such consolidation the indictment now virtually consists of three counts, each charging conspiracy.

“In indictment No. 2425 which may be considered the first count of the indictment, it is charged, etc. ***.

“Indictment No. 2426 being virtually the second count of the consolidated indictment, charges etc. ***.

“Indictment No. 2427 which is virtually the third count of the consolidated cause, charges etc. ***.”

Also instruction No. 10, tendered by the appellant and given by the court, reads in part as follows, “Each of the three counts of the indictment...