Finch v. State, No. 375S62

Docket NºNo. 375S62
Citation264 Ind. 48, 338 N.E.2d 629
Case DateDecember 18, 1975
CourtSupreme Court of Indiana

Page 629

338 N.E.2d 629
264 Ind. 48
Wallace J. FINCH, Appellant,
v.
STATE of Indiana, Appellee.
No. 375S62.
Supreme Court of Indiana.
Dec. 18, 1975.

[264 Ind. 49] Nicholas J. Schiralli, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellant was convicted on September 17, 1974, for Kidnapping and the commission of or attempt to commit crime while armed with a deadly weapon. Testimony of Merrie Laster revealed that on June 7, 1974, the witness finished work at a steel plant at about 7:00 a.m. As she entered her auto, a man put a straight razor in front of her face and told her to move over. The witness was forced at razor-point to drive this man around. Various

Page 630

sexual advances were made toward her, including kissing and other physical contact, in the course of this drive. At about 9:00 a.m. the witness was able to escape from the car. Later that day at the police station and at trial the witness identified the Appellant as her assailant.

I.

The Appellant's First Contention of reversible error is that the State failed to prove a material element of the crime charged. Ind.Code § 35--12--1--1, Burns § 10--4709 (Supp.1975), provides in part:

'Any person who being over sixteen (16) years of age, commits or attempts to commit any felony while armed with any dangerous or deadly weapon, or while any other person is present and aiding or assisting in committing or attempting to commit such felony is armed with any dangerous or deadly weapon, shall be guilty to a separate felony and upon [264 Ind. 50] conviction shall be imprisoned for (a) determinate period of not less than ten (10) years nor more than thirty (30) years.'

The Appellant contends (for the first time on appeal) that there was no direct testimony at trial establishing that the Appellant was over sixteen years of age. We find that the Appellant has waived the right to appeal such issue.

The Appellant's Motion to Correct Errors purports to embrace this issue with the following specification of error:

'5. That the verdict of the jury was contrary to the evidence.'

Such a general statement is not sufficiently specific to meet the requirements of our trial rules. It is insufficient to put the trial court on notice of the particular error alleged.

Ind.R.Tr.P. 59, made applicable to criminal cases by Ind.R.Cr.P. 16, provides as a condition for appeal that a motion to correct errors shall separately state each error with specificity. In listing a number of errors which may be alleged, Ind.R.Tr.P. 59(A) states in part:

'(4) the verdict or decision is not supported by sufficient evidence upon all necessary elements of a claim or defense, or is contrary to the evidence specifically pointing out the insufficiency or defect(.)'

Subsection (B) of that rule similarly reads in part:

'The statement of claimed errors shall be specific rather than general, and shall be accompanied by a statement of the facts and grounds upon which the errors are based.'

Issues asserted to be errors not stated with specificity in a motion to correct errors are deemed waived on appeal pursuant to subsection (G) of Ind.R.Tr.P. 59, Spivey v. State (1971) 257 Ind. 257, 274 N.E.2d 227. The Appellant's Motion to Correct Errors is deficient in this respect regarding this issue. An alleged error should be first specifically presented to the trial court for an opportunity for correction and should not be hidden in a generality to be later specifically [264 Ind. 51] raised on...

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31 practice notes
  • Thompson Farms, Inc. v. Corno Feed Products, Division of Nat. Oats Co., Inc., No. 1-1075A191
    • United States
    • Indiana Court of Appeals of Indiana
    • August 3, 1977
    ...requires a statement sufficiently specific to put the trial court on notice of the particular error alleged. Finch v. State (1975), Ind., 338 N.E.2d 629. Corno does not claim that use of the word "judgment" instead of the proper word "decision" actually impaired in any m......
  • Contech Architects and Engineers, Inc. v. Courshon, No. 2-777
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1979
    ...correct errors. Ind. Rules of Procedure, Trial Rule 59(G); Guardiola v. State, (1978) Ind., 375 N.E.2d 1105, Citing Finch v. State, (1975) 264 Ind. 48, 338 N.E.2d 629, 630 (overruled on other grounds, 364 N.E.2d 750, 754) ("An alleged error should be first specifically presented to the......
  • Lugar v. State ex rel. Lee, No. 2-675A145
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1978
    ...and from orders in proceedings supplemental to execution. 3 Edwards v. State (1976), Ind., 352 N.E.2d 730; Finch v. State (1975), Ind., 338 N.E.2d 629; Spivey v. State (1971), 257 Ind. 257, 274 N.E.2d 227; Macken v. City of Evansville (1977), Ind.App., 362 N.E.2d 203; Sacks v. State (1977),......
  • Pawloski v. State, No. 476S127
    • United States
    • October 10, 1978
    ...rendering it impractical to seek a warrant or unless a crime is committed in the presence of an officer. Finch v. State (1975), 264 Ind. 48, 338 N.E.2d 629; Throop v. State (1970), 254 Ind. 342, 259 N.E.2d 875; Williams v. State (1969), 253 Ind. 316, 253 N.E.2d 242. Exigent circumstances ha......
  • Request a trial to view additional results
31 cases
  • Thompson Farms, Inc. v. Corno Feed Products, Division of Nat. Oats Co., Inc., No. 1-1075A191
    • United States
    • Indiana Court of Appeals of Indiana
    • August 3, 1977
    ...requires a statement sufficiently specific to put the trial court on notice of the particular error alleged. Finch v. State (1975), Ind., 338 N.E.2d 629. Corno does not claim that use of the word "judgment" instead of the proper word "decision" actually impaired in any m......
  • Contech Architects and Engineers, Inc. v. Courshon, No. 2-777
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1979
    ...correct errors. Ind. Rules of Procedure, Trial Rule 59(G); Guardiola v. State, (1978) Ind., 375 N.E.2d 1105, Citing Finch v. State, (1975) 264 Ind. 48, 338 N.E.2d 629, 630 (overruled on other grounds, 364 N.E.2d 750, 754) ("An alleged error should be first specifically presented to the......
  • Lugar v. State ex rel. Lee, No. 2-675A145
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1978
    ...and from orders in proceedings supplemental to execution. 3 Edwards v. State (1976), Ind., 352 N.E.2d 730; Finch v. State (1975), Ind., 338 N.E.2d 629; Spivey v. State (1971), 257 Ind. 257, 274 N.E.2d 227; Macken v. City of Evansville (1977), Ind.App., 362 N.E.2d 203; Sacks v. State (1977),......
  • Pawloski v. State, No. 476S127
    • United States
    • October 10, 1978
    ...rendering it impractical to seek a warrant or unless a crime is committed in the presence of an officer. Finch v. State (1975), 264 Ind. 48, 338 N.E.2d 629; Throop v. State (1970), 254 Ind. 342, 259 N.E.2d 875; Williams v. State (1969), 253 Ind. 316, 253 N.E.2d 242. Exigent circumstances ha......
  • Request a trial to view additional results

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