Goldstine v. State

Citation234 Ind. 388,126 N.E.2d 581
Decision Date23 May 1955
Docket NumberNo. 29185,29185
PartiesSam GOLDSTINE, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

James P. Murphy, Robert A. Buhler, C. A. Lincoln, Ft. Wayne, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, John J. McShane, Deputy Attys. Gen., for appellee.

HENLEY, Chief Justice.

An affidavit on two counts charged Sam Goldstein (1) with second degree burglary under § 10-701 Burns' 1942 Repleacement, and (2) with possession of burglar tools by one previously convicted of a felony under § 10-703 Burns' 1942 Replacement. Defendant-appellant, upon waiving a jury trial, was found guilty by the court and sentenced. Defendant-appellant, in his motion for new trial, urges (1) that the decision of the trial court is not sustained by sufficient evidence; (2) that the decision of the trial court is contrary to law; and (3) that the trial court erred in overruling appellant's many objections to the evidence presented by the prosecution.

Appellant assigns as error the trial court's overruling of his motion to quash, motion in arrest of judgment and his motion for new trial.

Appellee, State of Indiana, urges that this appeal be dismissed because the appellant's assignment of errors was filed under the name of 'Sam Goldstine' while the judgment of conviction in the trial court was against one 'Sam Goldstein'. Technical or secretarial errors of this nature. which do not prejudice the rights of the State or the defendant should be disregarded on appeal and this is especially true in criminal cases. The state should not be allowed to take advantage of technical errors while the defendant is prohibited from asserting the same type of error against the State. § 9-2320 Burns' 1933 Indiana Statutes. Furthermore, we believe that the proper names 'GOLDSTINE' AND 'GOLDSTEIN', SPELLED IN a Slightly different manner but phonetically identical or nearly so are idem sonams. Cleaveland v. State, 1863, 20 Ind. 444; McLaughlin v. State, 1876, 52 Ind. 476; Selby v. State, 1904, 161 Ind. 667, 69 N.E. 463.

Appellant urges that count (1) for second degree burglary is insufficient because it fails to allege that the grocery store of Roy Kellam is a place 'other than a dwelling-house or place of human habitation' quoting § 10-701 Burns' 1942 Replacement, supra. In a former appeal, reversed on other grounds, this court expressly held this count adequately charged the crime of second degree burglary. Goldstine v. State, 1952, 230 Ind. 343, 352, 103 N.E. 438. See also: Lee v. State, 1938, 213 Ind. 352, 12 N.E.2d 949. We adopt that ruling as the law of this case.

Count (2) of the affidavit charging appellant, as a former convict, with possession of burglary tools is attacked by the appellant as being an unreasonable classification and therefore in conflict with Amendment Fourteen, § 1 of the United States Constitution and § 23, Art. 1 of the Indiana Constitution. Appellant also urges that count (2) is violative of Art. 4, § 20 of the Indiana Constitution. Appellant urges that the statute, § 10-703 Burns' 1942 Replacement, supra, is unconstitutional because it unreasonably classifies ex-convicts. This argument is certainly not tenable. The Habitual Criminal Act, § 9-2207 Burns' 1942 Replacement, makes a similar classification and the reasoning in the cases upholding the constitutionality of that act apply equally well to the case at hand. De La Tour v. State, 1929, 201 Ind. 14, 165 N.E. 753. Barr v. State of Indiana, 1933 205 Ind. 481, 187 N.E. 259. The argument that the term 'burglar tools' is not certain or exact enough to warn a person of his crime, is not valid since it is common knowledge, especially amongst the group classified, i. e. convicted felons, which tools are considered useful in committing burglaries. We therefore hold that this statute is constitutional as to the arguments set forth herein and in view of this court's holding in Steinbarger v. State, 1948, 226 Ind. 598, 83 N.E.2d 519.

Appellant urges that the trial court erred in admitting certain evidence offered by the State. No question is presented to this court on part of this evidence for the reason that appellants failed to make a timely objection to the admission of said evidence. Hantz v. State, 1931, 92 Ind.App. 108, 166 N.E. 439. Furthermore, appellant failed to substantially comply with Supreme Court Rule 2-17(e) and thereby waives said alleged errors. Supreme Court Rule 2-17(f).

We are of the opinion that appellant was not prejudiced by the admission of any evidence before an able...

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10 cases
  • Sizemore v. Public Service Commission
    • United States
    • Indiana Appellate Court
    • November 2, 1961
    ...Supreme Court has said in substance that the failure to substantially comply with this rule waives any alleged error. Goldstine v. State, 1955, 234 Ind. 388, 126 N.E.2d 581. By searching the record, I was able to determine that said Ex Parte Order in substance authorized all other telephone......
  • People v. Chastain, 85SA68
    • United States
    • Colorado Supreme Court
    • March 16, 1987
    ...constitutional despite the use of general language. See, e.g., Hogan v. Atkins, 224 Ga. 358, 162 S.E.2d 395 (1968); Goldstine v. State, 234 Ind. 388, 126 N.E.2d 581 (1955); Mahar v. Lainson, 247 Iowa 297, 72 N.W.2d 516 (1955), cert. denied, 350 U.S. 972, 76 S.Ct. 445, 100 L.Ed. 843 (1956); ......
  • Leroy T., In re
    • United States
    • Maryland Court of Appeals
    • July 23, 1979
    ...recognize that statutes have been upheld in the face of challenges that the term "burglars' tools" is unduly vague. Goldstine v. State, 234 Ind. 388, 126 N.E.2d 581 (1955); Mahar v. Lainson, 247 Iowa 297, 72 N.W.2d 516, Cert. denied, 350 U.S. 972, 76 S.Ct. 445, 100 L.Ed. 843 (1956); State v......
  • State v. Errington
    • United States
    • Missouri Supreme Court
    • March 12, 1962
    ...26 Cal.App.2d Supp. 768, 70 P.2d 281 (statute made it a misdemeanor for one not a member of the bar to 'practice law'); Goldstine v. State, 234 Ind. 388, 126 N.E.2d 581; State v. Bobbins, 35 N.J.Super. 494, 114 A.2d 474; Annotation 96 L.Ed. 374, 378. Conduct proscribed by Sec. 334.030 inclu......
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