Layton v. State

• Decision Date: 28 December 1966
• Docket Number: No. 30228,30228
• Citation: 221 N.E.2d 881,248 Ind. 52
• Parties: Michael Walton LAYTON, Appellant, v. The STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 881

221 N.E.2d 881

248 Ind. 52

Michael Walton LAYTON, Appellant, v.The STATE of Indiana, Appellee.

No. 30228.

Supreme Court of Indiana.

Dec. 28, 1966.

James G. Strawbridge, Joseph F. Quill, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Edgar S. Husted, Deputy Atty. Gen., for appellee.

JACKSON, Judge.

Appellant was charged by indictment in two counts; with (1) the premeditated murder of one Orvil Lee Gambrel, and (2) with the murder of Orvil Lee Gambrel while engaged in the perpetration of a robbery.

Appellant entered a plea of not guilty to both counts of the indictment, the cause was thereafter tried by jury, and appellant was found guilty on both counts and sentenced to the Indiana State Prison for life on each count.Thereafter, on November 15, 1961, the court entered judgment on the verdict sentencing appellant to the Indiana State Prison for life on each count and recommending that the two life sentences be served consecutively and not concurrently.

On November 23, 1961, appellant filed his motion for a new trial in said cause.Such motion in pertinent part alleged the two following grounds:

'1.That the verdict of the jury is not sustained by sufficient evidence.

'2.That the verdict of the jury is contrary to law.'

Appellant's assignment of errors is the single ground:

'1.The court erred in overruling the appellant's motion for a new trial.'

Appellant claims error was committed by allowing the introduction in evidence of offenses other than those with which he was charged and convicted.Two witnesses testified that they had accompanied and assisted appellant in several robberies of service stations and a church.The state contends the evidence was competent as showing a common scheme or plan because the offenses testified to occurred within a two month period preceding the murder charges, because the offenses were committed while armed and because all but one of the offenses involved service stations of the same company.

This court has previously held:

'The general rule is that one crime cannot be proved in order to establish another distinct crime even though they be of the same kind.Such evidence is highly prejudicial.Moreover, a defendant is entitled to be informed specifically of the crimes charged and not come to trial in the dark and uninformed as to the nature of the evidence to be presented against him.1 Ewbank's Indiana Criminal Law, SymmesEd., § 384, p. 236;Hergenrother v. State, 1939, 215 Ind. 89, 18 N.E.2d 874;Sylvester v. State, 1933, 205 Ind. 628, 187 N.E. 699;Fehlman v. State, 1928, 199 Ind. 746, 161 N.E. 8.There are certain exceptions to this general rule.Among these are cases where a crime has certain peculiar characteristics connected with its commission so that it very reasonably identifies the person involved in the commission.Where, for example, a particular type of break-in is involved, or a particular tool used that is identifiable in each case, or where the person involved wears a particular identifying piece of clothing or headgear.'Loveless v. State(1960), 240 Ind. 534, 539, 166 N.E.2d 864, 866.

The case at bar does not fit into any of the exceptions.There is no peculiar characteristic common to each of the offenses.The most the evidence of the prior offenses tends to show is that the appellant had previously committed...