Johnson v. State, No. 971S273

Docket NºNo. 971S273
Citation283 N.E.2d 532, 258 Ind. 648
Case DateJune 13, 1972
CourtSupreme Court of Indiana

Page 532

283 N.E.2d 532
258 Ind. 648
Robert Lee JOHNSON, Appellant,
v.
STATE of Indiana, Appellee.
No. 971S273.
Supreme Court of Indiana.
June 13, 1972.

[258 Ind. 649]

Page 533

John O. Moss, Indianapolis, for appellant.

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

HUNTER, Justice.

This is an appeal by Robert Lee Johnson, appellant (defendant below), from a conviction for assault with intent to kill. Appellant and another were charged jointly with the offenses of entering to commit a felony and assault with intent to kill. Appellant entered a plea of not guilty and waived trial by jury. He was tried separately to the court and was found not guilty on the charge of entering to commit a felony and guilty on the charge of assault with intent to kill. Appellant was sentenced to the Indiana Reformatory for not less than two (2) nor more than fourteen (14) years. His Motion to Correct

Page 534

Errors was overruled and this appeal followed.

Appellant has five main contentions.

(1) The State failed to establish a prima facie case against the appellant in its case in chief and it was therefore error not to grant appellant's Motion for Discharge.

(2) The evidence was insufficient to support a finding of guilty beyond a reasonable doubt.

[258 Ind. 650] (3) The Court erred in denying appellant's Motion in Arrest of Judgment which claimed the affidavit failed to state a public offense.

(4) The Court committed prejudicial error in denying appellant's Motion to Separate Witnesses.

(5) The Court erred in denying appellant's Motion to Consolidate for hearing on the Motion to Quash and in denying appellant's Motion to Consolidate this case with two other cases apparently pending.

We will consider together the first two contentions concerning whether or not the State established a prima facie case and whether the evidence was sufficient. In reviewing the sufficiency of the evidence, this Court has stated that we will not weigh the evidence on appeal nor will we 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 judgment will not be disturbed. Jackson v. State (1971) Ind.,275 N.E.2d 538; Daniels v. State (1971), Ind., 274 N.E.2d 702; Valentine v. State (1971), Ind., 273 N.E.2d 543.

The evidence most favorable to the State is as follows. Two men wearing ski masks entered the Jenkins Gun Shop at about 9:15 A.M. on February 20, 1971. One of the men removed a .22 calibre rifle from a box he was carrying, pointed it at the teller and announced it was a hold-up. At this point, the other man, who was described as wearing a red and blue ski mask and who was not carrying a gun, noticed the owner of the store walking in from the back and instructed the man with the rifle to 'Get the one in the back.' An exchange of gun fire followed and the masked men ran from the store.

At approximately this time, a man in the barbershop next door heard the shots and ran to the door. He saw two men [258 Ind. 651] wearing ski masks running from the direction of Jenkins Gun Shop. One of the men was wearing a red and blue ski mask, a red sweat shirt, and dark trousers. He ran to a white Ford automobile and drove away. About half-way down the block, he slowed down and the other man climbed into the car. The witness from the barbershop then leaped into his own car and followed. Eventually the white Ford stopped and the witness pulled up behind it. At this point, neither man was wearing a ski mask. The driver of the car who was wearing a red sweat shirt jumped out of the car and ran. The witness from the barbershop positively identified this man as being the appellant.

At this time, the State rested its case. Without considering whether this evidence was sufficient to convict, it was undoubtedly sufficient to establish a prima facie case by the State. 'Prima facie' means such evidence as is sufficient to establish a given fact and which will remain sufficient if uncontradicted. Rene's Restaurant Corp. v. Fro-Du-Co Corp. (1965), 137 Ind.App. 559, 210 N.E.2d 385. It had been established that two men in concert fired upon another human being; that they were then followed and one of them was positively identified as being appellant.

Appellant was completely unable to contradict this evidence during the presentation of his case. On the other hand, on rebuttal the State presented further evidence to establish appellant's...

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47 practice notes
  • Bergner v. State, No. 3-379A85
    • United States
    • December 12, 1979
    ...v. State, (1975) 263 Ind. 66, 324 N.E.2d 489 (photos properly excluded for failure to satisfy this requirement); Johnson v. State, (1972) 258 Ind. 648, 283 N.E.2d 532 Relevancy is the second requirement for the admission of photographic evidence in Indiana. Like all evidence, a photograph m......
  • Spinks v. McBride, No. 3:93cv0542 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • June 29, 1994
    ...that the photographs are a true and accurate representation of the things they are intended to portray. Johnson v. State (1972), 258 Ind. 648, 283 N.E.2d 532. Their relevancy is determined by whether a witness would be permitted to describe verbally that which the photograph depicts. Murphy......
  • Fleenor v. State, No. 1184
    • United States
    • Indiana Supreme Court of Indiana
    • October 13, 1987
    ...that the photographs are a true and accurate representation of the things they are intended to portray. Johnson v. State (1972), 258 Ind. 648, 283 N.E.2d 532. Their relevancy is determined by whether a witness would be permitted to describe verbally that which the photograph depicts. Murphy......
  • Albright v. Com. ex rel. Fetters
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 22, 1980
    ...Sec. F. & M. Ins. Co., 182 Pa.Super. 75, 125 A.2d 612 (1956); Beckman v. Brownback, 341 Pa. 565, 20 A.2d 200 (1941); Johnson v. State, 258 Ind. 648, 283 N.E.2d 532 (1972); Dal. Int'l. Trading Co. v. The Milton J. Foreman, 171 F.Supp. 794, (E.D.N.Y.1959); Detig v. Kelley, 17 Ill.App.2d 496, ......
  • Request a trial to view additional results
47 cases
  • Spinks v. McBride, No. 3:93cv0542 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • June 29, 1994
    ...that the photographs are a true and accurate representation of the things they are intended to portray. Johnson v. State (1972), 258 Ind. 648, 283 N.E.2d 532. Their relevancy is determined by whether a witness would be permitted to describe verbally that which the photograph depicts. Murphy......
  • Bergner v. State, No. 3-379A85
    • United States
    • December 12, 1979
    ...v. State, (1975) 263 Ind. 66, 324 N.E.2d 489 (photos properly excluded for failure to satisfy this requirement); Johnson v. State, (1972) 258 Ind. 648, 283 N.E.2d 532 Relevancy is the second requirement for the admission of photographic evidence in Indiana. Like all evidence, a photograph m......
  • Albright v. Com. ex rel. Fetters
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 22, 1980
    ...Sec. F. & M. Ins. Co., 182 Pa.Super. 75, 125 A.2d 612 (1956); Beckman v. Brownback, 341 Pa. 565, 20 A.2d 200 (1941); Johnson v. State, 258 Ind. 648, 283 N.E.2d 532 (1972); Dal. Int'l. Trading Co. v. The Milton J. Foreman, 171 F.Supp. 794, (E.D.N.Y.1959); Detig v. Kelley, 17 Ill.App.2d 496, ......
  • Fleenor v. State, No. 1184
    • United States
    • Indiana Supreme Court of Indiana
    • October 13, 1987
    ...that the photographs are a true and accurate representation of the things they are intended to portray. Johnson v. State (1972), 258 Ind. 648, 283 N.E.2d 532. Their relevancy is determined by whether a witness would be permitted to describe verbally that which the photograph depicts. Murphy......
  • Request a trial to view additional results

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