Hadley v. State

• Decision Date: 10 December 1968
• Docket Number: No. 31115,31115
• Citation: Hadley v. State, 251 Ind. 24, 242 N.E.2d 357 (Ind. 1968)
• Parties: Calvin Farrell HADLEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 357

242 N.E.2d 357

251 Ind. 24

Calvin Farrell HADLEY, Appellant, v.STATE of Indiana, Appellee.

No. 31115.

Supreme Court of Indiana.

Dec. 10, 1968.

Charles A. Wilson, Columbus, for appellant.

John J. Dillon, Atty. Gen., Douglas B. McFadden, Deputy Atty. Gen., for appellee.

ON PETITION FOR REHEARING:

LEWIS, Chief Justice.

This cause is before us on a Petition for Rehearing, which Petition, for the following reasons, is denied:

Appellant first urges as a basis for rehearing this Court's failure to pass upon an alleged error, to-wit: that the trial court erred in overruling Appellant's Motion in Arrest of Judgment.This Motion, filed after the jury's verdict, states that the affidavit, charging Appellant with a crime, read:

'To unlawfully and feloniously obtain unauthorized control over property of the said Richard L. Johnson and permanently deprive him of the use and benefit of any property then and there obtained.'

Also, that this affidavit varied fundamentally and fatally with the statute(§ 10--3030 Burns' Ind.Stat.Anno.) which reads:

'A person commits theft when he(1) knowingly: (a) obtains or exerts unauthorized control over property of the owner (and) intends to deprive the owner permanently of the use of benefit of the property.'

The Appellant urged in his Motion and in his Brief that the judgment be arrested because of the omission of language in the affidavit requiring the element of mens rea.

It appears first that the Motion in Arrest of Judgment was properly overruled.The law in Indiana, as stated in Britt v. State(1962)242 Ind. 548, 554, 180 N.E.2d 235, 239, is:

'Although a defective affidavit may be held insufficient on a motion to quash, such a defect on a motion in arrest of judgment would be cured by verdict.'

See also: State v. Kimener(1956)235 Ind. 191, 132 N.E.2d 264;Pope v. State(1944)227 Ind. 197, 84 N.E.2d 887;Romary v. State(1945)223 Ind. 667, 64 N.E.2d 22.It is further noted, as pointed out in Appellee's original brief, that the trial court used the word 'knowingly' in its Instruction #5, which defined the crime of theft.Based on the above, the error alleged by Appellant in his Brief and in his Petition for Rehearing is without merit and if a rehearing were to be granted on this point, the judgment below would again be affirmed.

This Court has decided that where an original opinion has correctly affirmed a judgment, but has failed to decide a question presented, a petition for rehearing should be denied if such rehearing would result again in affirmance.It has also been decided that the undecided question is properly dealt with in the opinion denying the Petition for Rehearing.See: ...