Jones v. State

• Citation: 23 Ind.Dec. 120,255 Ind. 57,262 N.E.2d 538
• Decision Date: 08 October 1970
• Docket Number: No. 369S68,369S68
• Parties: Nathaniel JONES, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 538

262 N.E.2d 538

255 Ind. 57

Nathaniel JONES, Appellant, v. STATE of Indiana, Appellee.

No. 369S68.

Supreme Court of Indiana.

Oct. 8, 1970.

Frederick B. Robinson, Indianapolis, for appellant.

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

JACKSON, Judge.

Appellant was charged by affidavit with the crime of Robbery, said affidavit reading in pertinent part as follows:

'(T)hat NATHANIEL JONES and FRANKIE J. WOODS on or about the 7th day of March, A.D. 1968, at and in the County of Marion in the State of Indiana, did then and there unlawfully, feloniously, forcibly by violence and putting LOU GOLDSTEIN, doing business as SACK'S MARKET, in fear, take from the person and possession of the said LOU GOLDSTEIN, doing business as SACK'S MARKET, money then and there of the value of TWO HUNDRED DOLLARS ($200.00), in lawful money, which property the said LOU GOLDSTEIN, doing business as SACK'S MARKET then and there lawfully held in his possession and was then and there the property of LOU GOLDSTEIN, doing business as SACK'S MARKET, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

On March 27, 1968, appellant waived arraignment and entered a plea of not guilty to the crime as charged. On July 25, 1968, the State filed Count II of its affidavit charging the appellant with the crime of Commission of a Robbery While Armed; said additional count reads in pertinent part as follows:

'(T)hat NATHANIEL JONES AND FRANKIE J. WOODS on or about the 7th day of March, A.D. 1968, at and in the County of Marion in the State of Indiana, being then and there over the age of sixteen (16) years, did then and there unlawfully, feloniously, forcibly by violence and by putting LOU GOLDSTEIN, in fear with a firearm, to-wit: REVOLVER, did then and there take from the person and possession of the said LOU GOLDSTEIN, doing business as SACK'S MARKET, money then and there of the value of TWO HUNDRED DOLLARS ($200) in lawful money, said money then and there the property of LOU GOLDSTEIN, doing business as SACK'S MARKET, then and there being contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.'

Appellant waived arraignment and initially entered a plea of guilty as charged to Count II of the affidavit. He later withdrew said guilty plea and entered a plea of not guilty to the crime as charged.

On November 18, 1968, the State filed its Motion to Nolle Count Two; said motion reads as follows:

'Comes now, NOBLE R. PEARCY, Prosecuting Attorney for the 19th Judicial Circuit, and moves the Court to enter a nolle prosequi to the indictment or affidavit in the cause of the State of Indiana vs. NATHANIEL JONES & FRANKIE J. WOODS for the following reasons, to-wit: the state is proceeding in a Jury Trial against the defendants on Count I.'

Thereafter, the appellant was ordered released as to Count II of the affidavit.

Trial by jury commenced on November 18, 1968, and on November 19, 1968, the jury returned its verdict finding appellant guilty as charged. After having examined the Pre-Sentence Investigation Report, the court, on December 5, 1968, sentenced appellant to the Indiana State Reformatory for not less than Ten (10) nor more than Twenty-Five (25) years.

Appellant filed his motion for new trial on December 19, 1968, said motion attacking the verdict of the jury as not sustained by sufficient evidence and contrary to law. Said motion was overruled by the court on January 3, 1969. Appellant's sole Assignment of Error on appeal is that: '1. The Court erred in overruling Appellant's Motion for a New Trial.'

From the evidence adduced at the trial of this cause, viewed most favorably to the State, it appears that shortly before noon on March 7, 1968, two armed men entered a grocery store at 2001 Bellefontaine, City of Indianapolis, owned and operated by Lou Goldstein. At this time Goldstein and two employees. C. W. Dorsey and Sylvester Barner, were present in the store. The two men grabbed Goldstein and took him to the rear of the store where Dorsey and Barner were standing. The smaller hold-up man forced the two employees to lie down while the larger hold-up man accompanied Goldstein to the front of the store where the cash register was located. Goldstein emptied out all the cash from the cash register, and the hold-up man took the money. The latter then ransacked other drawers under the counter and took a bag of coins, some money order blanks and receipts, and a .22 caliber, pearl-handled gas pistol. Goldstein was then returned to the rear of the store and was forced to lie down next to the employees. The hold-up men then left the store. Approximately $250 was found to be missing.

Officer Joe Young of the Indianapolis Police Department arrived at the scene of the crime at approximately 11:53 a.m., and, after conferring with Goldstein, Dorsey, and Barner, he broadcast a general description of the hold-up men and what they were wearing. A short time later, Officer Kenneth Hendrickson observed a car which 'appeared * * * to be in a hurry to get across the traffic * * *.' As he approached the car from the rear, it accelerated to a high rate of speed. Hendrickson gave chase, observed the car come to an abrupt stop, and then saw two individuals run from the car in opposite directions, one carrying a coat. These men were wearing dark trousers and bright green shirts.

After broadcasting a description of these men, Hendrickson walked up to the abandoned car and observed a gun, a pair of sunglasses, and a green hat therein. He then checked the car's registration and determined that it belonged to the appellant. Officer Hendrickson positively identified the appellant and Frankie J. Woods as the two men he saw 'bail out' of the car.

At approximately 12:00 noon Officer Kenneth Everton observed a man wearing a green shirt in the 2100 block of North Tacoma. As he started to question him, the man dropped the clothing he was carrying and ran. Everton gave chase on foot but lost sight of the man. He returned to where the clothing had been dropped and found two coats, one black and one blueish grey, containing $48 and a .22 caliber gas pistol. Goldstein testified that this pistol, State's Exhibit #1, was very similar to the one stolen from him during the robbery of his grocery store. Everton positively identified Frankie J. Woods as the man he attempted to question.

Forty minutes later, Officer Marcus Toney observed the appellant and Woods walking in the vicinity of 2300 Fernway. They were dressed in dark trousers and white T-shirts. Toney, believing the men to be the same men described in the broadcasts, arrested them on a charge of robbery. Toney searched the two and found $25 on the appellant and $34.90 on Woods.

Goldstein, Dorsey and Barner were taken to the scene of appellant's arrest, however, none of them could make a positive identification there of the appellant and Woods as the individuals who perpetrated the robbery. Nonetheless, Dorsey and Barner positively identified them during the course of their in-court testimony. They stated that the appellant was the larger of the two hold-up men, that he had worn a dark coat, sunglasses, and a hat at the time the store was robbed, and also that Woods was wearing a dark blue coat and sunglasses. Dorsey also stated that he recognized the appellant from certain facial features of his.

The statute under which appellant was charged and convicted is Burns' Ann.Stat. § 10--4101 (1956 Repl.); said statute reads in pertinent part 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, and be disfranchised and...