Lee v. State, No. 26869.

Docket NºNo. 26869.
Citation213 Ind. 352, 12 N.E.2d 949
Case DateFebruary 15, 1938
CourtSupreme Court of Indiana

213 Ind. 352
12 N.E.2d 949

LEE
v.
STATE.

No. 26869.

Supreme Court of Indiana.

Feb. 15, 1938.


Clarence Lee was convicted of burglary, and he appeals.

Reversed, with instructions to pronounce judgment for a determinate period.

[12 N.E.2d 950]

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...

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15 practice notes
  • Vaughn v. State, No. 876S236
    • United States
    • Indiana Supreme Court of Indiana
    • 4 August 1978
    ...United States (1894), 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208; Dewey v. State (1976), 264 Ind. 403, 345 N.E.2d 842; Lee v. State (1938), 213 Ind. 352, 12 N.E.2d 949; Rokvic v. State (1924), 194 Ind. 450, 143 N.E. 357. This rule of discretion applies until it affirmatively appears that offe......
  • Berry v. State, No. 372A141
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 October 1972
    ...be done providing there is nothing of a prejudicial character attached to or indorsed on the affidavit or indictment. Lee v. State (1938), 213 Ind. 352, 12 N.E.2d 949. However, there is no law requiring the court to let the jury have the affidavit while they are deliberating on their verdic......
  • Dewey v. State, No. 975S234
    • United States
    • 21 April 1976
    ...were of the same character and grew out of the same transaction. Doss v. State, (1971) 256 Ind. 174, 267 N.E.2d 385; Lee v. State, (1938) 213 Ind. 352, 12 N.E.2d 949. The procedure at the defendant's trial was governed by Ind.Code § 35-3.1-1-9 (Burns 1975), which '* * * (a) Two (2) or more ......
  • Taylor v. State, No. 29320
    • United States
    • Indiana Supreme Court of Indiana
    • 18 January 1956
    ...the value thereof. The language used relative to where the proposed felony was attempted is analogous to that used in Lee v. State, 1938, 213 Ind. 352, 354, 12 N.E.2d 949. The court there said it was drawn in substantial compliance with the statute. As to appellants' contention that the aff......
  • Request a trial to view additional results
15 cases
  • Vaughn v. State, No. 876S236
    • United States
    • Indiana Supreme Court of Indiana
    • 4 August 1978
    ...United States (1894), 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208; Dewey v. State (1976), 264 Ind. 403, 345 N.E.2d 842; Lee v. State (1938), 213 Ind. 352, 12 N.E.2d 949; Rokvic v. State (1924), 194 Ind. 450, 143 N.E. 357. This rule of discretion applies until it affirmatively appears that offe......
  • Berry v. State, No. 372A141
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 October 1972
    ...be done providing there is nothing of a prejudicial character attached to or indorsed on the affidavit or indictment. Lee v. State (1938), 213 Ind. 352, 12 N.E.2d 949. However, there is no law requiring the court to let the jury have the affidavit while they are deliberating on their verdic......
  • Dewey v. State, No. 975S234
    • United States
    • 21 April 1976
    ...were of the same character and grew out of the same transaction. Doss v. State, (1971) 256 Ind. 174, 267 N.E.2d 385; Lee v. State, (1938) 213 Ind. 352, 12 N.E.2d 949. The procedure at the defendant's trial was governed by Ind.Code § 35-3.1-1-9 (Burns 1975), which '* * * (a) Two (2) or more ......
  • Taylor v. State, No. 29320
    • United States
    • Indiana Supreme Court of Indiana
    • 18 January 1956
    ...the value thereof. The language used relative to where the proposed felony was attempted is analogous to that used in Lee v. State, 1938, 213 Ind. 352, 354, 12 N.E.2d 949. The court there said it was drawn in substantial compliance with the statute. As to appellants' contention that the aff......
  • Request a trial to view additional results

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