Finton v. State

• Decision Date: 17 October 1963
• Docket Number: No. 30210,30210
• Parties: Robert Dane FINTON, Appellant, v. The STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 134

193 N.E.2d 134

244 Ind. 396

Robert Dane FINTON, Appellant, v. The STATE of Indiana, Appellee.

No. 30210.

Supreme Court of Indiana.

Oct. 17, 1963.

John C. Bunner, Evansville, for appellant.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Deputy Atty. Gen., for appellee.

LANDIS, Justice.

Appellant was charged by affidavit with armed robbery. The first trial resulted in a mistrial being ordered by the court due to the illness of a juror. On the second trial a verdict of guilty was returned and appellant was sentenced to the Indiana State Prison for a period of ten years. Appellant has assigned as error the overruling of his motion for new trial.

Appellant first contends the verdict is not sustained by sufficient evidence in that the State did not prove the ownership of the money taken by appellant, and did not prove that the money was taken from the person of William Hausman.

Here the evidence showed that Mr. Hausman, manager of the Kroger store, was accosted by appellant with a gun and was instructed by appellant to turn over to him the money from four of the five cash registers of the Kroger store, which Hausman did. Hausman also on appellant's instructions removed all the money and checks from the safe in the Kroger store and gave the same to appellant. One of the keys to the safe was in the possession of Mrs. Bruce, head cashier of the Kroger store, and it was necessary for her to give her key to Hausman, the manager, for the safe to be opened. Two keys were required to open the safe, the remaining key being possessed by Hausman. Appellant also took the money from the store office, the money being kept there for cashing checks and money orders, making change and processing the collection of utility bills.

All of this testimony together with the necessary inferences was sufficient to prove the money taken by appellant was the money of the Kroger store. The State is not required to prove every element of crime by direct testimony or observance of each essential act by a witness. Hudson v. State (1957), 236 Ind. 237, 139 N.E.2d 917. Circumstantial evidence may be resorted to in order to establish the guilt of a defendant accused of robbery. Sinks, Taylor v. State (1956), 235 Ind. 484, 133 N.E.2d 563.

As to appellant's contention that there was no proof the money was taken from the person of William Hausman, the manager, the record shows that after Hausman collected the money from the various places, he put the money in a paper bag and gave the paper bag to appellant who had a gun in his hand. It thus appears, contrary to appellant's contention, that the money was taken from the person of Hausman.

However, it was not necessary for the evidence to show the money had been taken directly from Hausman, the manager, it being sufficient to show it had been taken from his personal presence. Chizum v. State (1932), 203 Ind. 450, 180 N.E. 674. The evidence in this case was certainly sufficient to show a taking from his personal presence.

Appellant has further contended the court erred in sustaining the State's demurrer to appellant's motion for a discharge of the appellant.

Here it appears that in February 1958 an affidavit in three counts was filed against appellant charging him with (1) kidnapping (2) armed robbery and (3) automobile banditry. He was tried on count 1 and convicted by a jury, and in April 1958 sentenced to the Indiana State Prison for life. In June 1958 counts 2 and 3 were dismissed on motion of the prosecuting attorney. The within proceedings were filed on December 22, 1960, by filing an affidavit charging appellant with the offense of armed robbery, the affidavit being identical with count 2 previously dismissed.

It further appears that following appellant's conviction on count 1 until December 7, 1960, he was continuously confined in the Indiana State Prison at Michigan City, Indiana, save and except for a period of one month following his conviction in 1958 when he was confined in the Vanderburgh County Jail.

Appellant contends that under Burns' Indiana Statutes, § 9-1402 (1956 REPL.), ARTICLE 1¹, § 12 of the Indiana Constitution and the Fourteenth Amendment of the U. S. Constitution guaranteeing him a right to a speedy trial, he is entitled to a discharge.

Burns' § 9-1402 (supra), in part provides:

'* * * And no defendant shall be detained in jail, without a trial, on an indictment or affidavit, for a continuous period embracing more than two terms after his arrest and commitment thereon; or if he was in jail at the time the indictment was found or affidavit filed, more than two terms after the term at which the indictment was found or the affidavit first filed; except where a continuance was had on his motion, or the delary was caused by his act, or where there was not sufficient time to try him during such terms: * * *.' (Italics ours.)

Appellee (The State) has contended appellant was not entitled to a discharge as the protection afforded a defendant under the above cited statute does not apply to time served in prison.

Without deciding the merits of appellant's petition for discharge in other respects, it appears that the facts do not come within the provisions of Burns' § 9-1402, supra, as the words 'detained in jail, without a trial' used in the statute have heretofore been construed by this Court not to be synonymous with confinement in a penitentiary for another crime. Chelf v. State (1944), 223 Ind. 70, 58 N.E.2d 353 (overruled on other grounds); See also: Palmer v. State (1926), 198 Ind. 73, 152 N.E. 607.

Appellant has made no contentions as to his constitutional rights here involved apart from a discussion of the above statute, and the above treatment therefore disposes of the contention here made.

Appellant's next contention is that he was placed in double jeopardy in that a previous jury sworn to try his case was subsequently discharged by the court prior to appellant's trial below.

Here it appears the previous jury was sworn to try appellant on September 12, 1961, and the State of Indiana commenced its opening statement to the jury on September 13th when a juror became ill. The trial was thereupon recessed and on September 14th the court declared a mistrial and discharged the jury over the objection of the appellant.

...