Grecco v. State
| Citation | 166 N.E.2d 180,240 Ind. 584 |
| Decision Date | 18 April 1960 |
| Docket Number | No. 29800,29800 |
| Parties | Gerald GRECCO, Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Dan C. Flanagan, James P. Murphy, Flanagan & McCain, Fort Wayne, for appellant.
Edwin K. Steers, Atty. Gen., Owen S. Boling, Asst. Atty. Gen., Patrick D. Sullivan, Deputy Atty. Gen., for appellee.
Appellant was charged with the crime of inflicting physical injury in the commission of robbery and after a trial by jury was convicted and sentenced to life imprisonment. He appeals from the judgment of conviction and assigns as error the overruling of his motion for new trial.
Appellant contends among other things that the verdict was not sustained by sufficient evidence and was contary to law. Appellant states that the following three elements are essential to be established in order to constitute the offense charged against appellant, viz:
(3) during the course of a robbery by him.
The evidence favorable to appellee shows that appellant and one Linius Barrone (a nephew of the victimized person Dora Barrone), on the night of February 4, 1956, borrowed a car belonging to Linius's wife in Chicago for the alleged purpose of collecting a debt in another city; that appellant and Linius Barrone did not return home until mid-morning of the following day, February 5; that the same car was seen in front of Dora Barrone's home in the town of Monroeville, Allen County, Indiana, in the early morning hours of February 5; that the said Dora Barrone was a 69 year old single woman living by herself in a house in said Monroeville, Indiana; that on the night of February 4, appellant and Linius had gone to the said home of Dora Barrone; that Linius had on said night of February 4, 1956, demanded money of Dora Barrone and had been given $15; that early on the morning of February 5, Linius, in the company of appellant, had returned to the home of Dora Barrone; that while appellant and Linius were in her presence, she was tripped by appellant and fell heavily to the floor; that appellant took from her bedding her revolver which was later found by the officers in Linius Barrone's Chicago home; that Linius beat Dora Barrone with a billy club he had picked up in the house, and which was later found near a pool of blood in Dora's home; that he used his feet on her to inflict further injury; that after taking money from her person, Linius Barrone and appellant fled; that Dora Barrone was found about 4:00 p. m. on February 5, in an unconscious state and in a pool of blood suffering from severe injuries to her head and body.
There is no question that the above evidence was sufficient to prove (1) the injury to Dora Barrone and that (2) the same occurred during the course of a robbery by appellant. Appellant argues the evidence is not sufficient to show a striking of Dora Barrone by appellant with a bludgeon or club.
Burns' § 9-102 (1956 Replacement), 1 provides:
'Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command, or otherwise procure a felony to be committed, may be charged by indictment or affidavit, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted; and, upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.'
The case of Breaz v. State, 1938, 214 Ind. 31, 34, 13 N.E.2d 952, 953, construes the above statute as follows:
'There can be no doubt of the general rule of law, that a person engaged in the commission of an unlawful act is legally responsible for all the consequences which may naturally or necessarily flow from it, and that, if he combines and confederates with others to accomplish an illegal purpose, he is liable criminaliter for everything done by his confederates which follows incidentally in the execution of the common design, as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. * * *' 1 R.C.L. § 5, p. 133.'
And it is further well settled that a person may be alleged in the affidavit to be a principal and evidence thereon introduced to prove that he was an accessory. Brunaugh v. State, 1910, 173 Ind. 483, 90 N.E. 1019.
It is therefore clearly apparent that the evidence was sufficient to prove that appellant, as an accessory, struck Dora Barrone with a bludgeon or club.
Appellant next relies on specification 13 of his motion for new trial alleging:
'The Court erred in permitting the prosecuting witness, Dora Barrone, to testify as a witness in the above-entitled cause, for the reason that said Dora Barrone was a person who had been adjudicated an insane person and had never been restored, all of the foregoing over the objection of the defendant.'
Appellant has, however, conceded in his brief on appeal that while the statute 2 makes an insane person incompetent as a witness, the modern view which is now prevalent and supported by the weight of authority, is that a person affected with insanity or mental illness, notwithstanding the positive prohibition of the statute (as to persons insane at the time they are offered as witnesses), may be a competent witness depending entirely on his or her mental condition as determined by the court at the time of trial. As this court stated in Wedmore v. State, 1957, 237 Ind. 212, 222, 223, 143 N.E.2d 649, 653, 654:
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Appellant next contends, as urged under specification 14 of his motion for new trial, that the exclusion by the court of appellant's offered exhibit one, (being a certified and exemplified copy of Dora Barrone's adjudication and commitment to an institution as a mentally ill person some five years prior to the trial), was error. It appeared further that she was released from the State Hospital later the same year.
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