Dunn v. State, No. 1--174A16

Docket NºNo. 1--174A16
Citation161 Ind.App. 586, 316 N.E.2d 834
Case DateSeptember 30, 1974
CourtCourt of Appeals of Indiana

Page 834

316 N.E.2d 834
161 Ind.App. 586
James DUNN, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 1--174A16.
Court of Appeals of Indiana, First District.
Sept. 30, 1974.

[161 Ind.App. 587]

Page 835

Robert R. Riggle, Jeffersonville, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendant-appellant Dunn was tried by jury and convicted of commission of a felony (robbery) while armed and aiming a weapon, being IC 1971, 35--12--1--1, Ind.Ann.Stat. § 10--4709 (Burns Supp. 1974) and IC 1971, 35--1--79--5, Ind.Ann.Stat. § 10--4708 (Burns Supp. 1974). His appeal presents the following issues for review:

1. Whether his conviction is supported by sufficient evidence.

2. Whether the trial court erred in denying his request to ask preliminary questions of the prosecuting witness prior to the witness' in-court identification.

The facts most favorable to the State are:

Edward W. Cassady, Sr., a septuagenarian, was fishing on Muskrat Creek at Clarksville when a stranger approached. A conversation ensued during which the stranger identified himself as James Dunn. Included in the conversation was a discussion of an industrial accident which had resulted in the loss of fingers on one of Dunn's hands. After further conversation, Dunn announced that he had to leave.

Cassady continued to fish, but soon was disturbed by a 'rustling noise', marking Dunn's return. Cassady described what he saw when he turned around as follows:

'. . . I couldn't believe my eyes. He set (sic) there with a rifle pointed straight at me, and I called to him and I said Oh, my, turn that thing away, that thing is dangerous, even when they are empty. I couldn't imagine it being anything but a horrible joke of some kind that he was [161 Ind.App. 588] playing on me. He shook his head and said no, he said I want your billfold.'

After an unsuccessful attempt to convince Dunn that pensioners do not make lucrative victims, Cassady reeled in his lines and began to walk up a hill toward a highway. A struggle ensued, and Cassady was felled by a blow to the back of his head inflicted with the butt of a rifle. On the ground, Cassady was repeatedly jabbed in the back of his head with the gun but failed to lose consciousness, according to his account. He further testified that he felt Dunn remove his billfold from his hip pocket. A final wound was inflicted when Cassady was shot in the cheek.

When police arrived at the scene, Cassady identified his assailant as James Dunn and stated that he had some fingers missing.

At the hospital, Cassady selected defendant-appellant Dunn from a group of 'at least four' mug shots as the perpetrator.

Two other witnesses testified that while on the road above Muskrat Creek, they saw Dunn standing over a person pointing a gun at him.

Dunn admitted having a conversation with Cassady while the latter was fishing, but denied returning to do him any harm. Dunn also admitted borrowing a rifle from a friend but stated that it had been stolen frim his...

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4 practice notes
  • Bradberry v. State, No. 2--1073A229
    • United States
    • Indiana Court of Appeals of Indiana
    • 4 Junio 1975
    ...v. State (1975), Ind.App., 321 N.E.2d 233, 234; Douglas v. State (1970), 254 Ind. 517, 261 N.E.2d 567; Dunn v. State (1974), Ind.App., 316 N.E.2d 834. It is difficult to perceive how defendant can contend that the evidence was insufficient to identify him as the assailant when the testimony......
  • Wheeler v. State, No. 3--774A127
    • United States
    • Indiana Court of Appeals of Indiana
    • 2 Enero 1975
    ...Milnes' Page 235 testimony may be uncorroborated, it is still sufficient to sustain the conviction. Dunn v. State (1974), Ind.App., 316 N.E.2d 834. We [163 Ind.App. 4] HOFFMAN and GARRARD, JJ., concur. --------------- 1 By failing to object, Larry Wheeler waived his suggested issues on iden......
  • Vasco v. State, No. 2--1174A266
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Marzo 1975
    ...were supported by sufficient evidence. IC 1971, 35--13--4--6, Ind.Ann.Stat. § 10--4101 (Burns 1956); Dunn v. State (1974), Ind.App., 316 N.E.2d 834. Appellants urge that their convictions were improper in that the information charged that the money was taken 'forcibly by violence and puttin......
  • Davis v. State, No. 3--875A176
    • United States
    • 26 Abril 1976
    ...that the evidence contained in the record fully establishes the essential elements of the crime. See, Dunn v. State (1974), Ind.App., 316 N.E.2d 834. Appellant also contends that the trial court erred in admitting over objection the testimony of Mrs. Blosl regarding the incident in which ap......
4 cases
  • Bradberry v. State, No. 2--1073A229
    • United States
    • Indiana Court of Appeals of Indiana
    • 4 Junio 1975
    ...v. State (1975), Ind.App., 321 N.E.2d 233, 234; Douglas v. State (1970), 254 Ind. 517, 261 N.E.2d 567; Dunn v. State (1974), Ind.App., 316 N.E.2d 834. It is difficult to perceive how defendant can contend that the evidence was insufficient to identify him as the assailant when the testimony......
  • Wheeler v. State, No. 3--774A127
    • United States
    • Indiana Court of Appeals of Indiana
    • 2 Enero 1975
    ...Milnes' Page 235 testimony may be uncorroborated, it is still sufficient to sustain the conviction. Dunn v. State (1974), Ind.App., 316 N.E.2d 834. We [163 Ind.App. 4] HOFFMAN and GARRARD, JJ., concur. --------------- 1 By failing to object, Larry Wheeler waived his suggested issues on iden......
  • Vasco v. State, No. 2--1174A266
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Marzo 1975
    ...were supported by sufficient evidence. IC 1971, 35--13--4--6, Ind.Ann.Stat. § 10--4101 (Burns 1956); Dunn v. State (1974), Ind.App., 316 N.E.2d 834. Appellants urge that their convictions were improper in that the information charged that the money was taken 'forcibly by violence and puttin......
  • Davis v. State, No. 3--875A176
    • United States
    • 26 Abril 1976
    ...that the evidence contained in the record fully establishes the essential elements of the crime. See, Dunn v. State (1974), Ind.App., 316 N.E.2d 834. Appellant also contends that the trial court erred in admitting over objection the testimony of Mrs. Blosl regarding the incident in which ap......

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