Hitch v. State, 1270S312

• Decision Date: 07 July 1972
• Docket Number: No. 1270S312,1270S312
• Citation: 284 N.E.2d 783,31 Ind.Dec. 674,259 Ind. 1
• Parties: James C. HITCH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 783

284 N.E.2d 783

259 Ind. 1

James C. HITCH, Appellant, v. STATE of Indiana, Appellee.

No. 1270S312.

Supreme Court of Indiana.

July 7, 1972.

Rehearing Denied Sept. 15, 1972.

William C. Erbecker, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellee.

PRENTICE, Justice.

The defendant (appellant) was charged by affidavit in two counts of Robbery by Putting in Fear (1956 Repl. Burns Ind.Stat.Ann. § 10--4101, IC 1971, 35--13--4--6, Acts of 1941, ch. 148, § 6) and Robbery While Armed (1968 Supp. Burns Ind.Stat.Ann. § 10--4709, Acts of 1929, ch. 55, § 1 as amended by Acts of 1965, ch. 298, § 1) IC 1971 35--12--1--1. He was convicted of a lesser included offense of Theft From the Person under 1969 Supp. Burns Ind.Stat.Ann. § 10--3030, IC 1971, 35--17--5--3, Acts of 1963 (Spec.Sess.) ch. 10, § 3) and he was fined $1,000.00 and sentenced to imprisonment for not less than one nor more than ten years. His motion to correct errors assigns four general errors pursued by this appeal: (1) Sufficiency of the charging affidavit to withstand his motion to quash, (2) sufficiency of the evidence to withstand his motion for a directed verdict at the conclusion of the State's evidence, (3) the court's refusal to give certain instructions hereinafter set forth, and (4) the verdict was a compromise, the offense of which he was convicted not being a lesser included offense of the one for which he was charged.

(1) The charging affidavit, in pertinent parts, was as follows:

'COUNT I

'That on or about the 19th day of March, 1969, at and in the County of St. Joseph, State of Indiana, at 111 West Ewing Street, South Bend, County and State aforesaid, one JAMES C. HITCH did then and there unlawfully, feloniously and forcibly and by violence and putting one Roger Finley in fear, rob, take and steal from the person of said Roger Finley, Five Hundred and Two Dollars ($502.00) in good and lawful currency of the United States of America, then and there belonging to the Ewing Cafe, 111 West Ewing Street, South Bend, County and State aforesaid, contrary to the form of Statute in such cases made and provided and against the peace and dignity of the State of Indiana.

'COUNT II

'That on or about the 19th day of March, 1969, at and in the County of St. Joseph, State of Indiana, at 111 West Ewing Street, South Bend, County and State aforesaid, one JAMES C. HITCH, being then and there over the age of sixteen (16) years, to-wit: twenty six (26) years of age, did then and there unlawfully, feloniously and forcibly while armed with a certain gun, to-wit: a 380 cal. Colt automatic gun, Serial No. 74264, rob, take and steal and carry away the personal goods and chattels of the Ewing Cafe, 111 West Ewing Street, South Bend, County and State aforesaid, to-wit: Five Hundred and Two Dollars ($502.00), in lawful and current money of the United States of America, contrary to the form of Statute in such cases made and provided and against the peace and dignity of the State of Indiana.'

The motion to quash and supporting memorandum, in pertinent parts, was as follows:

'MOTION TO QUASH

'Comes now the defendant in the above entitled cause of action and respectfully requests the court to quash Counts I and II of the affidavit hereinbefore filed for the following reason, to-wit:

'--1--

The affidavit does not state facts sufficient to constitute a public offense.

'--2--

The affidavit does not state the offense charged with sufficient certainty.

WHEREFORE, defendant respectfully prays that both Counts I and II of the affidavit be quashed.

/s/ Patrick Brennan

Patrick Brennan

Attorney for Defendant

'MEMORANDUM

No cause of action is shown in either Count I or Count II of the affidavit.'

The rule in effect at the time of the filing of the motion to quash was Rule 1--3B, adopted June 28, 1960, effective September 1, 1960, which is the same as the current Criminal Rule 3(A) and is as follows:

'Rule 1--3B. Memorandum to be Filed with Motion to Quash. In all cases where a motion is made to quash an indictment or affidavit, a memorandum shall be filed therewith stating specifically wherein such indictment or affidavit does not state the offense with sufficient certainty (fourth), or wherein the facts stated in the indictment or affidavit do not constitute a public offense (second), or if the motion is based upon the ground (first or third) that the grand jury which found the indictment had no legal authority to inquire into the offense charged, or that the indictment or affidavit contained any matter which, if true, would constitute a legal justification of the offense charged, or other legal bar to the prosecution, such matter and such lack of authority shall be specifically set forth in the memorandum.

The party so filing such motion shall be deemed to have waived his right thereafter to question the indictment or affidavit on any ground not so specified in the memorandum.'

The purpose of the memorandum rule is to enlighten the Court. A memorandum which, as here, merely repeats the conclusions of the motion does not fulfil such purpose and therefore does not meet the requirements of the rule. It is unrealistic to think that counsel may, by a mere suggestion of error, thrust upon the court the burden of independently exhausting the possibilities that he may correct. Reasons and authorities are the lawyers' work product and become the tools of the court, without which it cannot function. There was no error in the overruling of the motion to quash.

(2) The evidence in the case disclosed the following: The defendant came into the Ewing Cafe at approximately 12:45 a.m. and asked the bartender for a loan, which was refused. The conversation between the two lasted beyond 1:00 a.m., at which time the bartender began his preparation for closing, and he was unable to say whether or not the defendant left the tavern. Most of the lights were turned out, leaving the room dimly lighted. Approximately ten minutes after the aforementioned conversation had been concluded, two masked men entered the cafe through the main entrance, which was the only entry that was not locked. The taller of the two was the approximate size of the defendant, wore a black coat and had a gun in his hand. He ordered the bartender to hand over the money, whereupon the bartender placed a cigar box containing the money upon the bar. The bandit then removed the money, placed it in his pocket and ordered everybody present to turn over their wallets and to lie on the floor. In addition to the bartender, there were five patrons and a waitress in the room, and they all complied. Earlier, the police had received a call that there were two masked men on the street in front of the Ewing Cafe. As they arrived no investigate, they observed a masked man, with a gun in his hand, backing out the door. When they ordered him to halt, he ran back into the room. Two shots were fired, which momentarily deterred the entry of the police. Mr. Jackey, a patron, was lying on the floor. When he heard the door close, he began to rise but heard a shot and the masked man say 'Keep your head down.' The masked man ran behind the bar, removed his coat and went into the kitchen area, returned and fired another shot, leaned over the bar and yelled, 'One is still here' and laid down on the floor. When the police entered, they found several people lying on the floor. The defendant was pointed out to them as the bandit by Mr. Jackey and by the waitress. The premises were searched, and the police found a black coat containing two men's wallets, a mask, gloves and $502.00 in the pocket. A gun was found in the beer cooler behind the bar. At the trial, Mr. Jackey identified the defendant as the bandit. The foregoing evidence was ample to withstand the defendant's motion for a directed verdict and the subsequent verdict.

Upon the issue of the sufficiency of the evidence, this Court will consider only that evidence most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. The conviction will be affirmed if, from that viewpoint, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Fuller v. State (1971), Ind., 271 N.E.2d 720; Gibson v. State (1971), Ind., 271 N.E.2d 706.

(3) The court refused the defendant's tendered preliminary instructions number 1 and 4 which were as follows:

'PRELIMINARY INSTRUCTION NO. 1

Each and all of the instructions you are about to receive, and which are about to be read to you by the Court, are advisory only, for the Constitution of the State of Indiana provides, as a part of the Bill of Rights, as follows: 'In all criminal cases the jury shall have the right to determine the law and the facts.' This provision is stated in simple language, and, you know what it means; it means simply that you have the right to determine the law and the facts. Therefore, although the Court's instructions are entitled to your respectful consideration, yet they are not binding on your conscience.'

'PRELIMINARY INSTRUCTION NO. 4

'Under the Constitution of the State of Indiana you are given the right to determine both the law and the facts of this case, but it is your duty to administer the law, if valid, as you actually find it to be, regardless of whether or not you think the law is as you think it should be. You are not at liberty to set aside the law, if valid, and disregard it for no reason whatever. These instructions of the court are not to bind your conscience, but are to enlighten your judgment, and it is your sworn duty to follow and administer the law regardless of the consequences. This means that jurors, under their oaths, should honestly, justly and impartially follow the law, if valid, as it exists in each particular case, and they should so judge the laws, if valid, as to give them all a fair and...