Jackson v. State, No. 171S17

Docket NºNo. 171S17
Citation275 N.E.2d 538, 257 Ind. 477
Case DateDecember 03, 1971
CourtSupreme Court of Indiana

Page 538

275 N.E.2d 538
257 Ind. 477
Huey JACKSON, Appellant,
v.
STATE of Indiana, Appellee.
No. 171S17.
Supreme Court of Indiana.
Dec. 3, 1971.

[257 Ind. 478]

Page 539

Stephen Johnson, Marion, for appellant.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

This is an appeal from a conviction for robbery pursuant to IC 1971, 35--13--4--6 (Ind.Ann.Stat. § 10--4101 (1956 Repl.)). On July 3, 1968, appellant, Huey Jackson, was charged by affidavit with robbery. July 26, 1968, appellant filed a Motion to Quash, and October 14 and 24, 1968, the State filed amended affidavits for robbery. September 23, 1969, appellant waived arraignment and entered a plea of not guilty. Trial by jury was held and on March 10, 1970, appellant was found guilty. April 9, 1970, appellant was sentenced for not less than ten (10) nor more than twenty-five (25) years. Appellant [257 Ind. 479] filed a Motion to Correct Errors which was overruled, and this appeal followed.

Appellant presents four main contentions of error in this appeal:

(1) The verdict of the jury was not based on substantial evidence of probative value to sustain the conviction beyond a reasonable doubt.

(2) There was a denial of constitutional rights in that no probable cause existed for his arrest and no independent probable cause hearing was held.

(3) The admission of an item into evidence over timely and proper objection was error because the State failed to provide a proper foundation for its admission.

(4) The court imposed an unconstitutional sentence in that robbery is a lesser included offense of armed robbery and a defendant cannot be subjected to a more severe punishment for a lesser included offense than that for the greater offense.

In considering the first contention that the evidence was insufficient to sustain the verdict, this Court, upon review, will not weigh the evidence nor determine the credibility of witnesses. Only that evidence most favorable to the State and the reasonable inferences to be drawn therefrom will be considered. As long as there is substantial evidence of probative value sufficient to establish every material element of the crime beyond a reasonable doubt the verdict will not be disturbed. Valentine v. State (1971), Ind., 273 N.E.2d 543; Thomas

Page 540

v. State (1971), Ind., 268 N.E.2d 609; Tibbs v. State (1970), Ind., 263 N.E.2d 728.

The evidence most favorable to the State is as follows. At about 3:30 A.M., June 30, 1968, a shirtless man with a red bandanna over the lower part of his face entered a service station in Marion, Indiana. The man had a revolver in his hand which he pointed at the attendant, and he demanded that the attendant give him all the money. The attendant gave [257 Ind. 480] the man forty-eight dollars from his shirt pocket. The man then demanded that the attendant open a drawer but the attendant told him he did not have a key, so the man told him to find something with which to pry it open. At this time, a police car arrived on the scene in answer to a radio dispatch, and stopped about twenty (20) feet from the door to the service station. The man then ran out of the station and into a field behind the station. The two police officers in the car leaped out, and, never losing sight of the man, pursued him into the field and caught him. He was shirtless and had a red bandanna around his neck. The man the police apprehended was appellant, Jackson. They brought the appellant back to the service station where the attendant identified him as the robber. At trial, the attendant also positively identified the appellant as the robber. The police patted appellant down and placed him in the squad car. He was later taken to the police station where he was searched, although his shoes and socks were not searched. The revolver was later found in the field behind the service station, and it turned out to be a cap pistol. The money was never found but a man who was a fellow prisoner in the jail at the time of appellant's arrest testified that he saw appellant pass some money out through the jail window.

The statute under which appellant was convicted, IC 1971, 35--13--4--6 (Ind.Ann.Stat. § 10--4101 (1965 Repl.)), reads as follows:

'Whoever takes from the person of another any article of value by violence or by putting in fear, is guilty of robbery, and on conviction shall be imprisoned not less than ten (10) years nor more than twenty-five (25) years, * * *'

Thus, the material elements for the crime of robbery are (1) an unlawful taking, (2) from the person of another, (3) any article of value, (4) by violence or putting in fear. Jones v. State (1970), Ind., 262 N.E.2d 538. Appellant first contends there was a failure of proof as to who owned the money. The affidavit stated who the owner [257 Ind. 481] of the money was, and the appellant therefore asserts this must be proven. However, Thomason v. State (1970), Ind., 263 N.E.2d 725, involved a situation quite similar to this and the contention was denied. It also involved a service station hold-up, and, in that case,...

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82 practice notes
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...respect between the allegation in the Information and the evidence. Riley v. State (1976), Ind., 349 N.E.2d 704; Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d The Defendant's allegation that he was insufficiently identified as the perpetrator of the robbery is without merit in view of t......
  • Woodson v. State, No. 2-478
    • United States
    • Indiana Court of Appeals of Indiana
    • December 29, 1978
    ...is a lesser included offense of the crime of Armed Robbery. Dowdell v. State (1975), Ind.App., 336 N.E.2d 699; Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d 538; Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d In Dembowski, supra, our Supreme Court considered the constitutionality o......
  • Kelsie v. State, No. 1274S241
    • United States
    • Indiana Supreme Court of Indiana
    • September 21, 1976
    ...doubt. Young v. State (1975), Ind., 332 N.E.2d 103; Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686; Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d The evidence at trial revealed that on the early evening of October 5, 1973, the Appellant drove to Boonville, Indiana from her home i......
  • Gutermuth v. State, No. 10S01-0608-CR-306.
    • United States
    • Indiana Supreme Court of Indiana
    • June 20, 2007
    ...time a crime is committed governs the sentence for that crime. Smith v. State, 675 N.E.2d 693, 695 (Ind.1996) (citing Jackson v. State, 257 Ind. 477, 484, 275 N.E.2d 538, 542 (1971)). Because both the crime and the sentencing in Prickett pre-dated the enactment of the new regime, the same s......
  • Request a trial to view additional results
82 cases
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...respect between the allegation in the Information and the evidence. Riley v. State (1976), Ind., 349 N.E.2d 704; Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d The Defendant's allegation that he was insufficiently identified as the perpetrator of the robbery is without merit in view of t......
  • Woodson v. State, No. 2-478
    • United States
    • Indiana Court of Appeals of Indiana
    • December 29, 1978
    ...is a lesser included offense of the crime of Armed Robbery. Dowdell v. State (1975), Ind.App., 336 N.E.2d 699; Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d 538; Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d In Dembowski, supra, our Supreme Court considered the constitutionality o......
  • Kelsie v. State, No. 1274S241
    • United States
    • Indiana Supreme Court of Indiana
    • September 21, 1976
    ...doubt. Young v. State (1975), Ind., 332 N.E.2d 103; Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686; Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d The evidence at trial revealed that on the early evening of October 5, 1973, the Appellant drove to Boonville, Indiana from her home i......
  • Gutermuth v. State, No. 10S01-0608-CR-306.
    • United States
    • Indiana Supreme Court of Indiana
    • June 20, 2007
    ...time a crime is committed governs the sentence for that crime. Smith v. State, 675 N.E.2d 693, 695 (Ind.1996) (citing Jackson v. State, 257 Ind. 477, 484, 275 N.E.2d 538, 542 (1971)). Because both the crime and the sentencing in Prickett pre-dated the enactment of the new regime, the same s......
  • Request a trial to view additional results

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