Heflin v. State

Decision Date27 December 1977
Docket NumberNo. 776,776
PartiesFrederick HEFLIN, Appellant, v. STATE of Indiana, Appellee. S 232.
CourtIndiana Supreme Court

Paul T. Cholis, South Bend, for appellant.

Theo. L. Sendak, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

This is an appeal from a conviction of armed robbery. Appellant was sentenced to a determinate term of 15 years. The record shows that the appellant and three other men entered Little Johnny's Cigar Store in South Bend, Indiana, on January 8, 1975. The men were wearing ski masks and were armed with a pistol and a shotgun. An information was filed and an arrest warrant was issued on January 13, 1975. The warrant was not served until October 31, 1975, even though the appellant was confined in the St. Joseph County Jail from May 2, 1975, to July 18, 1975. The appellant was convicted of a federal offense and was removed to federal prison. The State filed a detainer on July 25, 1975, while the appellant was incarcerated in federal prison.

On September 5, 1975, the appellant filed a request for an early trial. He was arraigned in the trial court on October 31, 1975; trial began January 5, 1976.

Appellant first contends the information failed to specifically state a crime because it substituted the word "handgun" for " dangerous or deadly weapon," as set out in the statute. An information must state the crime in the language of the statute or in words which convey a similar meaning. IC § 35-3.1-1-2(a) (2) (Burns' 1975); Sullivan v. State, (1957) 236 Ind. 446, 139 N.E.2d 893. This Court will construe language used in light of its common acceptance and understanding. Dorsey v. State, (1970) 254 Ind. 409, 260 N.E.2d 800. The elements of armed robbery are: (1) the taking of an article of value from another by a person over 16 years of age; (2) by placing one in fear; and (3) while armed with a dangerous or deadly weapon. Schuster v. State, (1973) 261 Ind. 299, 302 N.E.2d 496. The information adequately set forth each of these elements. A "handgun" is considered to be a dangerous or deadly weapon within the meaning of IC § 35-12-1-1 (Burns' 1975). In Rowe v. State, (1974) 262 Ind. 250, 314 N.E.2d 745, this Court affirmed a conviction for robbery under this statute, stating that testimony which revealed that the defendant had used a .45 caliber automatic pistol was clearly sufficient to establish that the felony was committed while armed with a deadly weapon. We therefore hold the information in this case was properly drawn so as to advise the appellant of the crime with which he was charged.

Appellant next claims he was prejudiced because the information charged him with "take, rob and steal," rather than the word "take," as stated in the statute, IC § 35-3.1-1-2(a)(4) (Burns' 1975). The statute requires the elements of the crime to be stated in plain and concise language, without unnecessary repetition. This Court has held that unnecessary verbiage is not prejudicial unless it is manifestly detrimental and wholly foreign to the subject matter of the information. Kelsie v. State, (1976) Ind., 354 N.E.2d 219. In Doss v. State, (1971) 256 Ind. 174, 267 N.E.2d 385, this Court considered the effect of the phrase "unlawfully, feloniously and burglariously" in an affidavit for burglary. In that case we held that although the verbiage was redundant, it was not sufficiently prejudicial as to render the affidavit defective. We see nothing in the case at bar which would indicate that the use of the excessive words, as above stated, would be prejudicial to the appellant. We have previously held that there is no prejudice when the record reveals that the court expressly instructed the jury that the affidavit was not to be considered as evidence of guilt. Chesterfield v. State, (1924) 194 Ind. 282, 141 N.E. 632. In the case at bar the court instructed the jury that they should reach no conclusion until all the evidence was presented and all final instructions received. It further instructed the jury that the affidavit was not evidence to be used in determining appellant's guilt or innocence. Any potential prejudice by the use of the redundant language was therefore cured by the court's instructions.

Appellant next claims he was denied a speedy trial. He argues that his motion for an early trial required that he be brought to trial within 70 days under Indiana Rules of Criminal Procedure 4(B). This issue can be disposed of on procedural grounds. This Court has held that the accused has an obligation to object at the earliest opportunity when his trial date is set beyond the time limits prescribed by CR 4(B). Lewis v. State, (1976) Ind., 342 N.E.2d 859; State ex rel. Wickliffe v. Judge of Cr. Ct., (1975) Ind., 328 N.E.2d 420. In the case at bar the appellant clearly had opportunities during the pretrial and trial stages to object to a trial date scheduled beyond the 70-day limit set by CR 4(B). The appellant did not raise this objection however until his motion to correct ...

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20 cases
  • Norton v. State
    • United States
    • Indiana Supreme Court
    • August 4, 1980
    ...of the instrument was duplicitous or so misled appellant that he was entitled to have the information dismissed. See Heflin v. State, (1977) 267 Ind. 427, 370 N.E.2d 895; Carmon v. State, (1976) 265 Ind. 1, 349 N.E.2d 167. This issue is without Appellant next urges he was improperly denied ......
  • McFarland v. State, 2-177A33
    • United States
    • Indiana Appellate Court
    • January 22, 1979
    ...statutory provision, are different offenses. Compare George v. State, (1969) 252 Ind. 344, 247 N.E.2d 823 (attempt), with Heflin v. State, (1977) Ind., 370 N.E.2d 895 (consummated).We would not have the problem at bar if McFarland had been convicted of attempted armed robbery under a charge......
  • Cherry v. State, 1079S273
    • United States
    • Indiana Supreme Court
    • January 7, 1981
    ...is set beyond the seventy-day limit set by Ind.R.Crim.P. 4(B), or he waives his right to discharge under that rule. Heflin v. State, (1977) 267 Ind. 427, 370 N.E.2d 895; Cheeks v. State, (1977) 266 Ind. 190, 361 N.E.2d 906. There was no error Defendant next contends that the trial court err......
  • Mauricio v. State
    • United States
    • Indiana Supreme Court
    • April 2, 1985
    ...a crime, the fact such surplusage appeared in the information and was not proved does not present reversible error. Heflin v. State, (1977) 267 Ind. 427, 370 N.E.2d 895, reh. Defendant Arnold Mauricio, Jr. claims the trial court erred in consolidating his trial with that of his brother, def......
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