Hammond v. State, 29773

• Decision Date: 19 February 1960
• Docket Number: No. 29773,29773
• Citation: 240 Ind. 313,164 N.E.2d 640
• Parties: Charles E. HAMMOND, William Abercrombie, Louis Hokey and Ernest Parrett, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 640

164 N.E.2d 640

240 Ind. 313

Charles E. HAMMOND, William Abercrombie, Louis Hokey and Ernest Parrett, Appellants, v. STATE of Indiana, Appellee.

No. 29773.

Supreme Court of Indiana.

Feb. 19, 1960.

Cecil C. Tague, Sr., Brookville, for appellants.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Asst. Atty. Gen., John A. Pushor, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

This is an appeal from a judgment of the Franklin Circuit Court in which the appellants were convicted of the crime of second degree burglary. All the appellants except Charles E. Hammond have dismissed their appeal herein.

The appellant first claims that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. The contention centeres primarily about the alleged date the offense was committed. The affidavit charged the burglary was committed on the 6th day of July, 1958. The testimony of the owners of the store burglarized is to the effect that on Wednesday or Thursday following the Fourth of July, which would be the 9th or 10th, they discovered the remains of a ham in the refrigerator with the door ajar and certain merchandise missing, including wieners, cigarettes and shotgun shells. Upon further investigation they also discovered the coal window or chute in the basement had been used as an entrance. The fastenings on the window were unhooked and the coal dust about the window sill had been brushed and disturbed. The defendant Hammond made a confession to the police officers in which he stated the burglary took place on the 6th of July.

The State does not have to prove the particular date alleged in the indictment or affidavit so long as it is within the period of the statutes of limitation, since time is not of the essence of the particular offense involved. Acts 1905, ch. 169, § 175, p. 584, being § 9-1106, Burns' 1956 Repl.; Reed v. State, 1953, 232 Ind. 68, 111 N.E.2d 661; Dixon v. State, 1945, 223 Ind. 521, 62 N.E.2d 629; Bond v. State, 1927, 199 Ind. 484, 158 N.E. 241; Thompson v. State, 1928, 199 Ind. 697, 160 ,.n.E. 293.

For the reasons stated there is no insufficiency in the evidence on the point raised and the court committed no error in that particular.

The appellant next urges error with reference to certain evidence: (1) The introduction of State's Exhibit 1, the same being three packs of cigarettes, and (2) The introduction of the written confessions of appellant Hammond and co-defendant Ernest Parrett. With reference to the first exhibit, the specification in the motion for a new trial is insufficient, since the motion fails to set forth specifically the objections made to Exhibit No. 1. We are not compelled to search the record in this particular; however, the transcript shows that no specific objection was ever made to the introduction of State's Exhibit 1. For that reason, no question is presented to the court in regard to the introduction of State's Exhibit No. 1.

Appellant next claims that it was improper to permit the jury to consider the confession of Ernest Parrett, a co-defendant, insofar as the guilt or innocence of appellant Hammond was concerned. Here again the record fails to show any objection on that score, nor was any request made of the court to instruct the jury to confine its consideration of such confession tos the determination of the innocence or guilt of defendant Parrett. No error was saved in the trial court for review here on the point urged. McGee v. State (Radford v. State), 1952, 230 Ind. 423, 104 N.E.2d 726; Young v. State, 1923, 194 Ind. 345, 141 N.E. 629.

The appellant also states that part of Ernest Parrett's confession was covered by a blank sheet of paper, so that the jury was not able to read part of it. The appellant claims that this action created suspicion in the minds of the jurors and it was prejudicial. We fail to find any objection in the record on the part of the appellant with respect to the court's blanking out part of the confession. On the other hand, we do find that the record shows an objection was made to the jury's reading the entire exhibit (before part of it was blanked out) on the ground that it revealed that Parrett was involved in another offense. For the reasons stated, no error is presented to this court in the particular urged.

Appellan...