Lake v. State, 770S162

• Decision Date: 22 October 1971
• Docket Number: No. 770S162,770S162
• Citation: 27 Ind.Dec. 285,274 N.E.2d 249,257 Ind. 264
• Parties: Robert (R.L.) LAKE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 249

274 N.E.2d 249

257 Ind. 264

Robert (R.L.) LAKE, Appellant, v. STATE of Indiana, Appellee.

No. 770S162.

Supreme Court of Indiana.

Oct. 22, 1971.

Rehearing Denied Dec. 15, 1971.

William C. Erbecker, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Judge.

Appellant was charged by an indictment with the crime of accessory before the fact of robbery. The indictment reads as follows:

'The Grand Jury of the County of Miami do present upon their oath that on or about the 30th day of January, 1968, in the County of Miami and the State of Indiana one Orlester Beverly did then and there unlawfully, feloniously and forceable and by violence and putting one Margaret Copeland, in fear, rob, take and steal from the person of the said Margaret Copeland, nine Hundred and Seventeen Dollars, then and there belonging to the said Margaret Copeland, and being then and there contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana. And the said Grand Jurors do further present and charge that Robert (R.L.) Lake before the commiting of the felony aforesaid, towit: ON the 29th day of January, 1968 and the 30th day of January, 1968, at and in the County aforesaid, did then and there unlawfully and feloniously counsel, encourage, and command the said Orlester Beverly to do and commit the said felony in the manner and form aforesaid; and so the Grand Jurors upon their oaths aforesaid, do say and charge that the said Robert (R.L.) Lake did commit the crime aforesaid in the manner and form aforesaid contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana.'

The record discloses the following:

On the 30th day of January, 1968, Marie Lewis, Orlester Beverly and Paul Irby went to the home of Mrs. Margaret Copeland in Peru, Indiana. Mrs. Lewis knocked on the door and when Mrs. Copeland answered, the two men forced their way into the home. While they were in the process of binding and robbing Mrs. Copeland, Mr. Copeland, hearing the commotion, slipped out of the house undetected by the robbers and summoned police, who apprehended the robbers during the commission of the crime.

Mrs. Lewis testified that she and the two men, Irby and Beverly, drove to Peru from South Bend. Upon arriving in Peru they met the appellant, Robert Lake, and discussed a plan to rob a supermarket, but Lake stated that it was too late and that he had something else in mind.

The three men and Mrs. Lewis then drove to a supermarket where Mrs. Lewis was directed to buy some tape. After deciding that it was too late to rob the supermarket, they decided to go to the house of the people who owned the store (the Copeland residence). The appellant, Lake, showed the other three where the house was located. During this time they were riding in the appellant's car. They then returned to the car which Mrs. Lewis and the two men had driven from South Bend and returned to the Copeland home, the appellant driving his car and Irby, Beverly and Mrs. Lewis riding in their car. When they arrived back at the Copeland home, the appellant continued on in his car and the other three stopped and committed the robbery above described.

Orlester Beverly testified that only he, Paul Irby and Mrs. Lewis were involved. He explained his testimony before the grand jury involving the appellant by saying that it was 'the last straw' in attempting to gain leniency for himself.

Appellant first claims the trial court erred in overruling a motion to quash the indictment alleging that the indictment does not state an offense with sufficient certainty. With this we cannot agree. The language of the indictment above quoted could leave no doubt in the mind of the appellant as to the nature of the charge against him. The indictment is based upon two statutes. Burns Ind.Stat., 1956 Repl., § 9--102, IC 1971, 35--1--29--1 reads as follows:

'Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command, or otherwise procure a felony to be committed, may be charged by indictment, or affidavit, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted; and, upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.'

And Burns Ind.Stat., 1956 Repl., § 10--4101, IC 1971, 35--13--4--6 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, and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period. Whoever inflicts any wound or other physical injury upon any person with any firearm, dirk, stiletto, bludgeon, billy, club, blackjack, or any other deadly or dangerous weapon or instrument while engaged in the commission of a robbery, or while attempting to commit a robbery, shall, upon conviction, be imprisoned in the state prison for life.'

We hold that the trial court did not err in overruling appellant's motion to quash the indictment.

Appellant next contends the trial court erred in overruling his 'verified motion to quash and/or dismiss the entire panel and venire.' Appellant claims that he was prejudiced because he is a negro. That Miami County has approximately 10 to 12% negro population; that there was not a single member of the negro race on the entire jury panel. The mere fact that no negro happened to be on the panel does not of itself establish that members of the negro race were systematically excluded from jury service in Miami County. Akins v. Texas (1945), 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692. At pages 403 and 404, 65 S.Ct. at page 1279 the Supreme Court in the Akins case stated:

'* * * The mere fact of inequality in the number selected does not in itself show discrimination. A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination.'

In the case at bar the appellant made no effort to show any systematic exclusion of negroes or any other group for that matter from jury service in Miami County. This Court will not presume prejudice merely because a particular panel did not happen to include members of a particular minority group. Shuemak v. State (1970), Ind., 258 N.E.2d 158, 21 Ind.Dec. 296.

Appellant also states that negroes are excluded from jury service by reason of the fact that the selection of jurors is made from the names of persons appearing on the latest tax duplicates and tax schedules in the county, and that persons who do not own real estate or an automobile or other vehicle or certain types of boats, farm equipment or animals do not appear on the tax schedules and are thus excluded and that a large number of negroes fall within that category. We find no merit to this argument. The legislature is faced with the problem of providing for the selection of jurors in a manner calculated to insure impartial selection and at the same time there must be a practical manner to ascertain the names and addresses of the persons to be summoned. Since the case at bar was tried this Court has held that in a county where it has been demonstrated that the tax lists are no longer representative of the population, the trial court may order the prospective jurors summoned from the lists of eligible voters. State ex rel. Brune v. Vanderburgh Circuit Court (1971), Ind., 265 N.E.2d 524, 24 Ind.Dec. 279 There is no evidence that the condition was such in April, 1970, at the time this case was tried that the jury did not represent a cross-section of the population of Miami County. It is noted that the statute which was largely responsible for the ruling in the Brune case did not go into effect until January 1, 1971.

Appellant next claims the trial court erred in refusing to allow him to testify that he was elsewhere when the alleged crime was committed. The appellant filed no alibi notice in this case as required by Burns Ind.Stat., 1956 Repl., § 9--1631, IC 1971, 35--5--1--1 nor did he during the trial attempt to show good cause for his failure to file such an alibi notice as provided in § 9--1633, IC 1971, 35--5--1--3 of the statute.

The question of whether or not a defendant should be permitted to give testimony of alibi evidence even though he has filed no alibi notice as required by statute, has been raised in several jurisdictions. The following cases hold that the defendant has the right to so testify even though he has failed to file alibi notice in accordance with the statute: People v. Rakiec (1942), 289 N.Y. 306, 45 N.E.2d 812; State v. Stump (1963), 254 Iowa 1181, 119 N.W.2d 210; and State v. Post (1963), 255 Iowa 573, 123 N.W.2d 11. The following cases hold that a notice of alibi statute applies to the defendant and that he will not be permitted to testify concerning alibi unless a prior notice has been filed pursuant to the statute: State v. Rider (1965), 194 Kan. 398, 399 P.2d 564; State v. Taylor (1967), 198 Kan. 290, 424 P.2d 612; and State ex rel. Simos v. Burke (1968), 41 Wis.2d 129, 163 N.W.2d 177.

Upon examination of the above cases we take the position that the better reasoning is found in the latter cases. This proposition is well stated in Simos, supra, where the court at page 180 in 163 N.W.2d states:

'* * * If a criminal trial is viewed as a draw poker game with all cards to be held close to the chest until played, this can be seen as requiring a tipping of one's hand in advance. However, if a criminal trial is viewed as a search...