Lee v. State

• Decision Date: 15 February 1938
• Docket Number: 26869.
• Citation: 12 N.E.2d 949,213 Ind. 352
• Parties: LEE v. STATE.
• Court: Indiana Supreme Court

12 N.E.2d 949

213 Ind. 352

LEE v. STATE.

No. 26869.

Supreme Court of Indiana

February 15, 1938

Appeal from Wells Circuit Court; John F. Decker, Judge.

Robt. A. Buhler, of Fort Wayne, for appellant.

Omer Stokes Jackson, Atty. Gen., and Rexell Boyd, of Evansville for the State.

HUGHES Judge.

This action was brought by the State of Indiana against the appellant Clarence Lee, Ira Williams, and Dan Terhune by filing an affidavit against them in three counts, charging petit larceny, burglary, and a conspiracy to commit a felony. The appellant was found guilty on the second count charging burglary.

The errors relied upon by the appellant for reversal are:

(1) the overruling of his motion to quash the amended affidavit,

(2) that the court erred in overruling appellant's motion for a new trial, and,

(3) in overruling appellant's motion to correct and modify the judgment.

The only grounds properly presented for a new trial are as follows:

(1) The court erred in overruling defendant's motion to require the State to elect on which count of the affidavit it desired to rely upon;

(2) That the verdict is contrary to law and is not sustained by sufficient evidence;

(3) That the court erred in sentencing the appellant to an indeterminate sentence instead of a determinate sentence.

The appellant endeavors to present error upon the giving and refusing to give certain instructions which are not properly in the record. They are not brought into the record by a special bill of exceptions and therefore not a part of the record on appeal. Rhodes v. State, 202 Ind. 159, 171 N.E. 301, 172 N.E. 176; Donovan v. State, 185 Ind 15, 111 N.E. 433; Goodman v. State, 188 Ind. 70, 121 N.E. 826.

The court did not err in overruling the motion to quash the amended affidavit. Each count of the affidavit was drawn substantially in conformity with the statute covering the specific offense. As stated above, the appellant was found guilty of the charge contained in the second count, burglary. This count charged, in substance, that the appellant Williams, and Terhune on the 8th day of December, 1936, in Wells County, in the State of Indiana, did unlawfully feloniously, and burglariously enter into the granary of one Chris Grewe with intent then and there feloniously and burglariously to take, steal, and carry away the goods, chattels and personal property of said Chris Grewe.

There was no error committed in refusing appellant's motion to require the State to elect on which of the three counts of the affidavit it relied upon for trial. The felonies charged in the different counts were of the same character and grew out of the same transactions, and, under such circumstances, they may be charged in separate counts in the same affidavit and the State cannot be compelled to separate or elect. Rokvic v. State, 194 Ind. 450, 143 N.E. 357, 358.

'Until it affirmatively appears that offenses of a different character or relating to different transactions have been improperly joined, the action of the court with reference thereto is discretionary.' Rokvic v. State, supra; Knox v. State, 164 Ind. 226, 73 N.E. 255, 108 Am.St.Rep. 291, 3 Ann.Cas. 539. The appellant was convicted only on the second count which amounted to an acquittal on the first and third.

The appellant complains of the fact that the jury was permitted to take the affidavit with them into the jury room. It has many times been decided by this court that it is proper to permit this to be done, provided there is nothing of a prejudicial character attached thereto, or indorsed thereon. Middaugh v. State, 191 Ind. 373, 132 N.E. 678; Masterson v. State, 144 Ind. 240, 43 N.E. 138.

The evidence shows that Williams and Terhune prior to December 8 1936, had stolen corn and had sold the same to the appellant who at the time knew it was stolen. Williams had sold stolen corn to Lee on different occasions. Williams testified that he asked Lee 'if he cared if his corn was hot.' That Lee said he would buy anything and he furnished Williams with sacks and stated to Williams 'it would save me the trouble of sacking it up again.' Williams stated he would take Lee ten or eleven sacks of grain at a time. Lee paid Williams each time for the grain he received. The grain was carried each time and deposited in the hay mow in Lee's barn. He told Williams he would like to have one hundred and fifty bushels of oats and that he did not care if it was 'hot stuff.' The evidence also shows that he told Williams he would like to have some meat hogs and 'that if we got one, we could take it to the basement,' and he would also like to have some chickens before Christmas. The evidence shows that Lee had a regular schedule of prices for the stolen grain he received from Williams and Terhune. He gave them 30 cents per bushel for oats, 65 cents for corn, and 75 cents for wheat. After the first load of wheat was sold to Lee, he told Williams and Terhune to go back to Grewe's and get the balance of the wheat and corn. They did this and were paid by Lee for the grain. It appears that the first time Williams sold grain to Lee was the last of October or the first of November, 1936. The evidence clearly shows that prior to December 8, 1936, Lee was buying from Williams stolen grain of any description and that Lee knew it was stolen; that he told Williams that he would buy 'hot' grain of any kind and furnished him with sacks to put the grain in so that it would not have to be re-sacked when brought to his barn. The evidence further...