Hubbard v. State, No. 573S88

• Docket Nº: No. 573S88
• Citation: 262 Ind. 176, 313 N.E.2d 346
• Case Date: July 09, 1974
• Court: Supreme Court of Indiana

Page 346

313 N.E.2d 346 262 Ind. 176 Sam HUBBARD, Jr., and George E. Moon, Appellants,
v.
STATE of Indiana, Appellee. No. 573S88. Supreme Court of Indiana. July 9, 1974.

[262 Ind. 177]

Page 347

Donald S. Eisenberg, Madison, Wis., Arnold P. Baratz, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice.

The Appellants were indicted for First Degree Murder and Conspiracy to Commit Murder, and for Kidnapping. A jury found them guilty of First Degree Murder and Conspiracy to Commit Murder.

The facts are simple. In Indianapolis, one John Ross, a narcotics dealer, was approached by Appellants Moon and Hubbard, whom he knew slightly from Gary, for the purpose of testing some heroin. Ross and the murder victim, a woman named Uvet Staten, got into the back seat of a car driven by Moon. Hubbard was in the right front seat. Moon drove to a wooded area, stopped the car and pulled out a pistol. Ross and Staten bolted from the car. Hubbard shot Ross five times. Moon shot Staten seven times. Staten died, but Ross lived and testified to these facts.

The Appellants raise six issues. The State saw fit not to meet five of these issues on the merits. Instead, the State was content to allege waiver on the grounds that Appellants had not complied with Rule AP. 8.3(A)(7) by their failure to cite 'authorities.' The sub-section upon which the State relies reads as follows:

[262 Ind. 178] (7) An argument. Each error assigned in the motion to correct errors that appellant intends to raise on appeal shall be set forth specifically and followed by the argument applicable thereto. If substantially the same question is raised by two (2) or more errors alleged in the motion to correct errors, they may be grouped and supported by one (1) argument. The argument shall contain the contentions of the appellant with respect to the issues presented, the reasons in support of the contentions along with citations to the authorities, statutes, and parts of the record relied upon, and a clear showing of how the issues and contentions

Page 348

in support thereof relate to the particular facts of the case under review. (our emphasis)

It should be obvious that the phrase 'along with citations to the authorities . . . relied upon,' assumes that such authorities exist. If there are no such authorities, the party could scarcely cite them. The phrase in question is not a technicality to be used to preclude party from raising a novel issue, or, in the light of new reasoning, suggesting a reconsideration of a settled rule of law. The function of the sub-section is to secure a convenient and uniform mode for presentation of issues to an appellate court. The Appellants' brief is satisfactory in this respect. The issues are clearly presented. The State ought to have met the merits.

As to these merits, Appellants' first issue is that the trial court committed reversible error in not granting a motion for severance for the reason that the eye-witness Ross did not see the defendant Moon shoot the deceased. Moon alleged that if severance were not granted he might be found 'guilty by association.' However, the evidence was that Ross did see Moon shoot the deceased. Thus, there was no abuse of the discretion a trial judge has as to motions for severance. Kirkland v. State (1968) 249 Ind. 305, 232 N.E.2d 365; Johnson v. State (1964), 245 Ind. 295, 198 N.E.2d 373; Sherwood v. State (1960), 241 Ind. 215, 170 N.E.2d 656. The judgment concerning the court's discretion is measured by what occurs at trial. Garrison v. State (1967), 249 Ind. 206, 231 N.E.2d 243.

[262 Ind. 179] Appellants' second issue is that two photographs of the deceased were of no probative value whatsoever and were introduced to inflame and prejudice the jury. The photographs made vivid what a witness narrated. We have repeatedly held that such kinds of pictures are admissible notwithstanding their unpleasantness. Leaver v. State (1968), 250 Ind. 523, 237 N.E.2d 368; Kiefer v. State (1958), 239 Ind. 103, 153 N.E.2d 899; Wahl v. State (1951), 229 Ind. 521, 98 N.E.2d 671.

Appellants complain that since the eye-witness did not testify at the Grand Jury hearing no probable cause could have existed for the indictment and that the indictment was originally brought against an unknown person, (i.e.) 'John Doe.' Even a cursory reading of the pertinent statutes reveals that an indictment or information does not have to include a name, or if a wrong name is used 'such defect shall not be a ground for dismissal. . . .' IC 1971, 35--3.1--1--2 and 35--3.1--1--15 (Burns' Ind.Stat.Ann. §§ 9--904 and 9--917 (1973 Supp.)). It is elementary that an indictment may not be questioned on the ground of insufficient evidence. Stephenson v. State (1932), 205 Ind. 141, 179 N.E. 633; Guy v. State (1906), 37 Ind.App. 691, 77 N.E. 855; Pointer v. State (1883), 89 Ind. 255. The sufficiency of the evidence is decided at trial.

Appellants' fourth issue is that they were prejudiced by ridicule which the prosecutor directed at a defense witness. The following is the colloquy complained of:

'A. Yeah, you'd like to get a fix, that's what you asked me, would you lie to get a...