Fisher v. State, 30634

• Decision Date: 22 September 1966
• Docket Number: No. 30634,30634
• Citation: 247 Ind. 529,219 N.E.2d 818,9 Ind.Dec. 108
• Parties: Frank Clay FISHER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 818

219 N.E.2d 818

247 Ind. 529

Frank Clay FISHER, Appellant, v. STATE of Indiana, Appellee.

No. 30634.

Supreme Court of Indiana.

Sept. 22, 1966.

Robert L. Wyttenbach, Wyttenbach, White & Caldwell, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Raymond I. Klagiss, Deputy Atty. Gen., for appellee.

RAKESTRAW, Chief Justice.

The appellant was charged by affidavit with the crime of robbery. After a trial to the court without a jury, the appellant was found guilty of the lesser-included offense of assault with intent to commit a felony, to-wit, larceny. The appellant was sentenced to the Indiana State Prison for a period of not less than one year nor more than ten years.

In his motion for a new trial, the appellant maintains that the finding of the court is not sustained by sufficient evidence, and that the finding is contrary to law.

In his assignment of errors, the appellant lists four specifications of error. Three of these specifications have to do with the sufficiency of the evidence to sustain a conviction. The other specification alleges error in admitting testimony relating to prior criminal offenses.

As to the admission of such testimony, it has long been held that in order to be available on appeal, all alleged errors arising prior to the filing of the motion for new trial must be made grounds for such motion for new trial, or they will be deemed waived. Supreme Court Rule 2--6. Wagner v. State (1963), 243 Ind. 570, 188 N.E.2d 914; Edwards v. Wyllie (1964), Ind., 203 N.E.2d 200.

Even if we disregard the rules with respect to the motion for new trial, the appellant does not set forth in his brief any specific objection that was made, or any specific questions or answers. An examination of the transcript reveals that there were five questions to the appellant on cross-examination having to do with prior convictions. There was no specific objection to any of the questions. The appellant did admit two specific convictions, the court specifically admonished the appellant not to answer a third question, and the simple objection 'we object' was sustained by the court as to the fourth and fifth questions. The only testimony actually admitted was the simple admission of two convictions. Such convictions are admissible as affecting the credibility of the appellant, who chose to be a witness.

The other specifications of error all deal with the sufficiency of the evidence. Taking the evidence most favorable to the state, it appears that the appellant entered a house at about 10:00 p.m. with a pistol in his hands and told the occupants 'this is a stick-up.' He took six dollars from one Kermit C. Dunn, saying 'you don't need this.' He then searched Dunn and asked him if he had any more money. He then took some more money from another occupant and ordered the occupants into an adjoining room, locked the door to such room and told them not to come out until they were told. Kermit Dunn testified that he had never seen the appellant prior to the robbery.

It is well settled that on appeal, the state is entitled to the most favorable version of the evidence, together with the reasonable inferences that may be drawn therefrom. Myles v. State (1955), 234 Ind. 129, 124 N.E.2d 205; Kallas v. State (1949), 227 Ind. 103, 83 N.E.2d 769. Taking such a view of the evidence, there was clearly enough...