James v. State

• Decision Date: 26 April 1972
• Docket Number: No. 571S137,571S137
• Citation: 281 N.E.2d 469,258 Ind. 392
• Parties: Sterling JAMES and Stephen Johnson, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 469

281 N.E.2d 469

258 Ind. 392

Sterling JAMES and Stephen Johnson, Appellants, v. STATE of Indiana, Appellee.

No. 571S137.

Supreme Court of Indiana.

April 26, 1972.

Julian B. Allen, F. Laurence Anderson, Jr., Gary, for appellants.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Appellants were charged with the crime of robbery. Trial resulted in a conviction as charged. Appellants were each sentenced for terms of ten to twenty years.

The record in this case discloses the following facts:

At approximately 1:30 A.M., August 25, 1969, a filling station in Portage, Indiana, was robbed. The attendant, Joseph Michael Pauley, told investigating police officers that he had been robbed by two men, who were negro; that one wore light clothing and the other wore dark clothing; that one of the men had a goatee; that they left the filling station in a white Chevrolet, either a 1962 or a 1963. This information, was immediately relayed to the Portage Police Station. Gary Police Officer Szczerbik received this communication while on a patrol in the Gary area, some seven to either miles distant from the robbery. Shortly after he received the radio communication Officer Szczerbik observed a Chevrolet automobile fitting the description on the street in Gary. He observed the automobile contained two negro men, one dressed in light clothing, the other one in dark clothing, and that one had a goatee. As the officer followed the automobile, it stopped at an intersection and the Appellant Johnson got out of the car and approached Officer Szczerbik and asked directions to Chicago. The officer immediately placed Johnson under arrest and searched him. While doing this he observed the Appellant James reach under the seat of the car. Officer Szczerbik ordered James out of the car and searched him.

Meanwhile Gary Police Officer Thompson arrived on the scene and held the appellants at gunpoint while Officer Szczerbik searched the automobile for weapons. He found a .38 caliber revolver under the driver's seat and an automatic pistol under the passenger's side of the front seat. While the arrest and search were in progress Officer Ballard of the Portage Police Department had been notified of the arrest and had picked up Joseph Michael Pauley, the filling station attendant, and brought him directly to the scene of the arrest for the purpose of making identification of the appellants. Pauley identified the appellants as the men who had robbed him a few minutes earlier.

Following this identification Officer Ballard, who was from Portage in Porter County where the robbery had taken place, placed the appellants under arrest for armed robbery, and the police officers from Gary, which is located in Lake County, volunteered to transport the appellants to the Portage Police Station.

After first being advised of their constitutional rights, at 11:30 A.M. on the day he was arrested, Appellant Johnson signed a written confession as to his participation in the robbery, and at 12:15 P.M. on the same day as his arrest, the Appellant James signed a written confession.

The appellants first claim the trial court erred in overruling their motion to quash the affidavit. It is their claim that the affidavit for the issuance of an arrest warrant merely states conclusions of the affiant and is insufficient to establish probable cause, citing the case of Kinnaird v. State (1968), 251 Ind. 506, 242 N.E.2d 500, 16 Ind.Dec. 250. However, the case at bar does not come within the factual framework of the Kinnaird case. In the case at bar the appellants were arrested in a valid 'on sight arrest' without a warrant by a police officer with probable cause to make such arrest. Therefore, the Kinnaird decision does not govern. State ex rel. French v. Hendricks Superior Court (1969), 252 Ind. 213, 247 N.E.2d 519, 17 Ind.Dec. 554; Rector v. State (1971), Ind., 271 N.E.2d 452, 26 Ind.Dec. 335.

We, therefore, hold the appellants were being held pursuant to a valid arrest and, therefore, the trial court did not err in overruling appellants' motion.

Appellants next claim they were denied their constitutional rights in that they were arrested by officers who did not view the commission of a misdemeanor nor did they have probable cause to believe the appellants had committed a felony at the time of the arrest. With this we cannot agree. The facts as above recited clearly demonstrate the arresting officer had probable cause to believe the appellants had committed the robbery which had just been described to him on a police radio.

We, therefore, hold the arrest of the appellants and the search of their person and the automobile were lawful. Patterson v. State (1970), 253 Ind. 499, 255 N.E.2d 520, 20 Ind.Dec. 290; Hlousek v. State (1971), Ind., 269 N.E.2d 387, 25 Ind.Dec. 536.

Appellants next claim they were denied their constitutional rights in that they were not taken before a magistrate within twenty-four hours of their arrest in violation of Burns Ind.Stat., 1963 Repl., § 48--6112, IC 1971, 18--1--11--8. They were arrested at approximately 2:00 A.M. on Monday and were not taken before a magistrate until Wednesday. However, appellants make no claim or observation that the failure of the police to take them before a magistrate within twenty-four hours in any way amounted to duress which contributed to the obtaining of any evidence against them. The confessions which they signed were made long before the expiration of the twenty-four hour period provided by the statute. Appellants rely upon the case of McNabb v. United States (1943), 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. This Court has previously held in Pearman v. State (1954), 233 Ind. 111, at page 117, 117 N.E.2d 362, at page 365, that the ruling in McNabb applies only to the federal procedural statutes governing federal courts, and in so holding stated:

'We have never held the Indiana statutes requiring an arrested accused to be brought promptly into open court require a confession to be excluded, if it is not obtained in violation of constitutional rights.

'Nor do we find that he was denied representation by counsel. He made his confession less than 24 hours after his arrest, the sheriff never denied him the use of the telephone nor said he could not have a lawyer. His wife and relatives were permitted to see him during the usual visiting hours. He had competent counsel at the time of his plea of not guilty and at the time of trial.'

There is nothing in the record in the case at bar to indicate that the holding of the appellants beyond the twenty-four hour period in any way contributed to a violation of their constitutional rights.

Appellants next claim the trial court erred in refusing to suppress evidence because the arrest and incarceration of the appellants was accomplished without regard to Burns Ind.Stat., 1956 Repl., § 9--401, IC 1971, 35--1--4--1. This statute provides a procedure for the removal of a fugitive found in one county of this state who has committed a crime in another county. Provision is made for the issuance of a warrant for his arrest in the county where he is found upon a probable...