Johnson v. State

• Decision Date: 13 May 1964
• Docket Number: No. 30145,30145
• Citation: 245 Ind. 295,198 N.E.2d 373
• Parties: Robert JOHNSON, Pearl Johnson, Carl Wesby, Sr., Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 373

198 N.E.2d 373

245 Ind. 295

Robert JOHNSON, Pearl Johnson, Carl Wesby, Sr., Appellants, v. STATE of Indiana, Appellee.

No. 30145.

Supreme Court of Indiana.

May 13, 1964.

George W. Brady, Paul S. Brady, Muncie, for appellants.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Deputy Atty. Gen., for appellee

MYERS, Judge.

This is an appeal from a conviction of robbery as charged in a joint affidavit filed in the Delaware Superior Court No. 2 of the State of Indiana. Trial was had before a jury on pleas of not guilty. Appellants submitted evidence and took the witness stand to testify in their defense. The jury returned a verdict finding each of them guilty of robbery as charged. They were sentenced to prison for a period of not less than ten nor more than twenty-five years and disfranchise. Separate motions for new trial were filed and overruled. This appeal followed.

The affidavit charged six persons, including these appellants, as having participated in the robbery. The other defendants were known as James H. Wallace, John Wilson and James Carl Wesby, Jr. Wallace was tried with the appellants herein and found guilty. He did not appeal his conviction. John Wilson pleaded guilty and commenced serving his term in prison. The record is not clear as to what happened to Wesby, Jr., the only reference to him being a statement by the Prosecutor that he was confined as a prisoner in the Indiana State Reformatory and a request that the court subpoena him as a material witness to testify at the trial. There is nothing to show that he appeared as a witness or testified as such. Whether he was confined to the Reformatory because of proceedings in this case, or for some other reason, is not revealed.

The assignment of errors contains a number of improper assignments, such as error in the admission of certain testimony and evidence during the trial and the overruling of motions for directed verdict. These are not independent assignments of error, and belong in the motion for new trial. Supreme Court Rule 2-6. Appellants do claim error in overruling the motions for new trial.

These motions filed separately by each appellant are similar, lengthy and involved. In general, they boil down to the following specifications of error:

(1) Overruling appellants' motions for directed verdict at the end of State's evidence.

(2) Overruling appellants' motions for directed verdict at the conclusion of all the evidence.

(3) Overruling of appellant Robert Johnson's motion for a separate trial.

(4) Admitting in evidence testimony given by certain deputy sheriffs concerning the statement made to them by James H. Wallace after his arrest and then admitting a written confession signed by him and John Wilson known as State's Exhibit 29.

(5) Insufficiency of the evidence.

(6) That the verdict is contrary to law.

We may dispose of the first contention concerning the overruling of appellants' motions for directed verdict at the conclusion of State's evidence. Any error committed by the court's action then was waived when appellants presented their evidence. Swift v. State (1961), 242 Ind. 87, 176 N.E.2d 117.

As to overruling appellant Robert Johnson's motion for a separate trial, this was a matter of discretion with the trial court pursuant to statute. Section 9-1804, Burns' Ind.Stat., 1956 Replacement. Error can be claimed only in case of an abuse of this discretion. Neal v. State (1938), 214 Ind. 328, 14 N.E.2d 590, 15 N.E.2d 950; Weer v. State (1941), 219 Ind. 217, 36 N.E.2d 787, 37 N.E.2d 537; Mobley v. State (1949), 227 Ind. 335, 85 N.E.2d 489. The motion itself is not set forth in the transcript, which reads only as follows (court's entry of March 2, 1961):

'Comes now the defendant Robert Johnson by counsel and files motion for separate trial which motion so filed is in these words, to-wit; (H.I.):'

This is the only reference to the motion, and there is no showing that the court ever ruled on it. However, appellant Johnson waived his rights to a separate trial, if he had any, when he appeared in open court on June 5, 1961, with counsel, and voluntarily submitted himself for trial with the other defendants and their counsel without raising objection to being tried jointly. Thus, the court did not abuse its discretion in trying him with the others.

The other contentions of appellants involve a consideration of the evidence to which we shall devote our attention at this time.

On the night of January 22, 1961, which was Sunday, between 9:30 and 10:00 p. m., Mrs. Nina Bunner, aged 71, was in her home alone in a sun room watching television. She lived in Royerton, Indiana, a small town on State Road 3, near Muncie, Indiana. There was a safe in her bedroom which contained glass fruit jars filled with silver money, United States currency, two rings, an automatic pistol, a revolver and a watch. As she sat watching the television program, she heard a 'kind of swish and it looked like two big giants coming at me.' Something was thrown over her head and some one pushed her chest and head until the back of her chair was broken, at the same time asking for the combination of her safe. They tied her legs and arms, rolled her out of the chair, and piled rugs, bedspreads and articles from the bed on her. They turned the television set off, ran through the dining room and out the rear door. She was finally able to get up, and made a telephone call to the police, who told her she would have to call the sheriff. She asked that they do this for her, which they did. When the sheriff arrived, she told him what had happened to her, and went by ambulance to a hospital where she remained for two weeks. On investigation of the premises, it was found that the safe in her bedroom was open and the money, rings, pistols and watch were gone.

It is to be noted that Mrs. Bunner did not identify any of the defendants, including these appellants, as being her attackers, nor did she mention that they were of the colored race. Several days later, appellant Robert Johnson was arrested and took police officers to his home. He and appellant Pearl Johnson lived at 921 North Brady Street in Muncie as husband and wife. He pointed out where some money from the robbery was located. This was in the chimney of his fireplace. The police took a sledge-hammer and broke through the chimney into the flue. Money came out in bags wrapped up in a large sooty towel. It was all coins, in six or seven packages. A ring was also found. The money and ring were identified as belonging to Mrs. Bunner and being part of the property stolen from her safe.

It seems that several days after the robbery, police officers went to Danville, Illinois, where they arrested the defendants Wallace and Wilson and recovered part of the stolen money from them. There is no indication in the record as to how the police arrived at the connection between these defendants and the robbery. Wallace, who was out on parole for another conviction, waived extradition and returned to Indiana voluntarily with Wilson and both were placed in the Delaware County jail in Muncie. This all took place at the end of the week of January 22, 1961. While in jail, Wallace and Wilson made statements to the police and the sheriff, which, in substance, were as follows:

On January 21, 1961, Wallace and Wilson drove from Danville, Illinois, to Indianapolis and then to Muncie, where Wilson had previously lived. They took Wallace's wife's automobile, which was a Chrysler Imperial with Illinois license plates. In Muncie, they ran into Carl Wesby, Sr., and James Carl Wesby, Jr., who were uncle and nephew. They had planned to return to Danville that evening, but Carl Wesby, Sr., urged them to stay overnight in order to 'make some money' by robbing the safe at Mrs. Bunner's house. Wallace and Wilson ended up at the Johnson house, since Wilson had known Pearl when he was a resident of Muncie. They stayed all night there. On Sunday, they made their plans, and Pearl drew a diagram of the Bunner house showing where the safe was located. Carl Wesby, Sr., was going to get the tools with which to open it.

Robert Johnson was in bed most of the afternoon while the others watched television. He finally got up around 5:00 o'clock and talked about how much money was at the Bunner house, 'eighty to one hundred thousand dollars.' When it grew dark, Wallace, Wesby, Jr., Robert Johnson and Wilson drove over to Carl Wesby, Sr.'s house, transferring from Wallace's Chrysler Imperial to Wesby, Sr.'s 1958 Oldsmobile. The five of them then drove to the Bunner house. However, they saw an automobile in the driveway and realized that Mrs. Bunner had guests, so they went back to the Johnson house. Later, about 10:00 p. m., they returned to the Bunner house and parked the Oldsmobile about two blocks away, in view of the house. Wallace, Wilson and Wesby, Jr., got out of the car, walked over to the rear of the house, broke in the door, threw a rug over Mrs. Bunner and robbed the safe after tying her up. Meanwhile, Johnson and Carl Wesby, Sr., stayed out in the car. A police patrol car happened to come along and stopped by the Oldsmobile to see if the occupants were in trouble. This was while the robbery was taking place. The police car was seen by the three defendants from the house, and, thinking that they might get caught, they hurriedly left, going through backyards, fields, and across alleys. There was snow on the ground and it was very cold, being below zero. They stumbled in their flight, and Wesby, Jr., lost a shoe in crossing a fence. Each time they stumbled, some of the money they were carrying fell to the ground. Wilson took off one of the shirts he was wearing and wrapped it around Wesby, Jr.'s shoeless foot. They finally made it back to the Johnson house, where everybody but Wesby, Sr., was present. They took the money into the bathroom, split it in six piles, each one taking his share. Pearl promised to see that Carl Wesby, Sr.,...