Leitner v. State

• Decision Date: 13 September 1967
• Docket Number: No. 30613,30613
• Citation: 11 Ind.Dec. 138,229 N.E.2d 459,248 Ind. 381
• Parties: Frank Joseph LEITNER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 459

229 N.E.2d 459

248 Ind. 381

Frank Joseph LEITNER, Appellant, v. STATE of Indiana, Appellee.

No. 30613.

Supreme Court of Indiana.

Sept. 13, 1967.

Harry S. Taylor, Clark & Clark, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., of Indiana Frederick J. Graff, Deputy Atty. Gen. of Indiana, for appellee.

JACKSON, Judge.

This is an appeal from the St. Joseph Superior Court No. 1 arising by reason of appellant's conviction in that court after trial by jury of having committed a felony.

Appellant, on the 14th day of February 1962, was charged by affidavit in three counts with the crimes of, by count one thereof, second degree burglary; by count two thereof, of the crime of automobile banditry; and by count three thereof, with the crime of grand larceny.

Thereafter, on March 6, 1962, appellant challenged the sufficiency of the three counts of the affidavit by motion to quash all three counts. This motion was promptly overruled, and on the same date appellant filed his motion to strike the first and third counts of the affidavit, which motion was at that time overruled.

On March 26, 1962, appellant waived arraignment and entered a plea of not guilty to all three counts of the affidavit. Thereafter, on February 13, 1964, appellant filed his motion to require the State of Indiana to elect upon which count they depended for prosecution, and to dismiss the other two counts. Hearing was had upon said motion, and the State elected to dismiss count two of the affidavit charging automobile banditry, and to proceed on counts one and three. The court ordered count two dismissed, and further ordered that thereafter in the trial of this cause, count number three would be referred to as count two.

Count one of the affidavit, omitting formal parts thereof, and signatures thereto, reads as follows:

'RAYMOND, L. ROY, being first duly sworn upon his oath, deposes and says:

'That on or about the 12th day of February, 1962, at and in the County of St. Joseph, State of Indiana, one FRANK JOSEPH LEITNER did then and there unlawfully, feloniously and burglariously break and enter into the building and structure of Raymond L. Roy and Geraldine E. Roy, doing business as The Royal Hawaiin (sic) Jewelers, then and there situated at 125 N. Michigan Street, South Bend, St. Joseph County, Indiana, which building and structure was not a place of human habitation, with intent then and there to commit a felony therein, to-wit: unlawfully and feloniously to take, steal and carry away the goods and chattels and personal property of the said Raymond L. Roy and Geraldine E. Roy, contrary to law in such cases made and provided and against the peace and dignity of the State of Indiana.'

Count two of the affidavit reads as follows, to-wit:

'RAYMOND L. ROY, being first duly sworn upon his oath, deposes and says:

'That on or about the 12th day of February 1962, at and in the County of St. Joseph, State of Indiana, one FRANK JOSEPH LEITNER did then and there unlawfully and feloniously take, steal and carry away of the personal goods and chattels of Raymond L. Roy and Geraldine E. Roy the following:

1. 841 Model T. Shields Watch

2. 3018 Model T. Shields Watch

3. 838 Model T. Shields Watch

4. 3017 Model T. Shields Watch

5. 3046 Model T. Shields Watch

6. Florentine Bracelet Longine Watch

7. Turquoise Ring

then and there of a total value of Two Hundred Fifty Four Dollars and Seventy Cents ($254.70), contrary to law in such cases made and provided and against the peace and dignity of the State of Indiana.'

On February 24, 1964, the trial was concluded and the jury returned the following verdict:

'We, the jury, find the defendant guilty of the included offense in count 1, to-wit: Entering to Commit a Felony, and we further find his age to be 40 years. We further find the defendant not guilty of count 2 as charged.'

The court thereupon set February 27, 1964, for the finding on the verdict and ordered the defendant be feferred for presentence investigation. Afterwards, on the 27th day of February, 1964, the court referred the defendant to the chief adult Probation Officer for St. Joseph County to make a pre-sentence investigation and fixed March 23, 1964, for the disposition of the matter on the pre-sentence investigation.

Afterwards, on March 13, 1964, appellant filed his motion for new trial, which omitting caption, formal parts thereof and signature thereto, reads as follows:

'Comes now the Defendant, Frank Joseph Leitner, and moves for a new trial in this cause for the following reasons, to-wit:

'1. Error of law committed at the trial in the giving of State's Requested Instruction No. 8.

'2. Error of law committed at the trial in the giving of State's Requested Instruction No. 9.

'3. Error of law committed at the trial in the giving of State's Requested Instruction No. 10.

'4. Error of law committed at the trial in the giving of State's Requested Instruction No. 13.

'5. Error of law committed at the trial in refusal to give Defendant's Requested Instruction No. 1.

'6. Error of law committed at the trial in refusal to give Defendant's Requested Instruction No. 2.

'7. Error of law committed at the trial in refusal to give Defendant's Requested Instruction No. 7.

'8. That the verdict of the Jury is not sustained by sufficient evidence.

'9. That the verdict of the Jury is contrary to law.'

Thereafter, on the 23rd day of March, 1964, the court had a hearing on appellant's motion for new trial and said motion was overruled; the court sentenced the defendant upon the verdict of the jury, finding the defendant guilty of the lesser included offense of entering to commit a felony. The court then sentenced the defendant to the custody and control of the warden of the Indiana State Prison for a period of not less than one nor more than ten years.

Thereupon the defendant filed his praecipe for an appeal and a petition to be admitted to bail, and the court set the appeal bond in the penal sum of $5,000.00; the defendant filed such bond with surety and the court ordered the defendant to be released on bond pending the appeal.

The assignment of errors filed herein is the single specification:

'Comes now the Appellant and shows to the Court that the trial court committed manifest error in the trial of this cause in the following respects, to-wit:

'1. In overruling the Motion for new trial.'

The evidence most favorable to the State may be summarized as follows:

Mrs. Lydia Edmonds testified that she was employed as a stock clerk by Mr. and Mrs. Roy at the Royal Hawaiian Jewelers in February of 1962. That it was her duty to wait on customers and do various other things. On February 12, 1962, the store opened at 12:00 o'clock and she was there at 11:00. That she had lived in South Bend since 1951 and was employed at the Royal Hawaiian Jewelry store about eleven years, nine of which were prior to February 12, 1962. That she rode to work with Mrs. Van Goey who was a secretary employed by the firm. She picked her up on the particular day involved, and they drove by the Worth Store and the Hawaiian store. At that time two men were standing by the store conversing with one another. She could not see their faces. They drove to the parking lot behind Wyman's store and saw the two men for about a second. After parking the car they headed back down the alley to Michigan Street. They walked down Michigan Street to the store when they heard the glass break. She saw the two men still standing there and Mrs. Van Goey started screaming and calling the police. They were facing the two men. She went into the Dainty Maid Bakery to call the police. She did not see the two men do anything before she went into the bakery, she did not see either of them put anything into his pockets and she did not see anything in their hands. She was in the bakery a matter of seconds, then went outside, and the two men were still standing there. They stood there for a few seconds, then started walking, at a normal gait, along Michigan Street with their backs to her.

Robert Copeland, who was employed by the South Bend Police Department as a detective sergeant on February 12, 1962, was called to the Royal Hawaiian Jewelry Store on that date, where he observed a lot of glass in the lobby and observed a glass was missing from a show case on the north side of the lobby. He was at the Royal Hawaiian for six or seven minutes and had a conversation with Mrs. Van Goey. While he was there he obtained a description of the two parties that Mrs. Van Goey had seen in the lobby. About that time Mrs. Van Goey noticed a car in front of the store to which she directed his attention. It was a blue 1960 Ford which was in a 12 minute zone. The car was on the west side of the street headed south. The witness did not recall any other cars parked in front of the store at that time. He was inside the Royal Hawaiian when a person came to the car and got in behind the wheel. That person was the appellant. The appellant started the car and the witness came out to the car and asked appellant if he would come to the police station with him and the appellant said yes and turned the engine off and got out of the car. They went to the police station and went into one of the interrogation rooms and appellant identified himself and produced $500.00 which he had on him. He said that it was his car in front of the store, and he said that he had come to town by way of the toll road and had parked in a 12 minute zone and left the key in the car. He said he was walking in the downtown area looking for a pair of shoes and window shopping. He asked if the charge was serious and the witness said yes, or that it could be, and he asked whether this charge could be taken care of. The witness told him it could not. At that time the witness told him that he did not know what the charges would be except that his car was tagged for improper registration and that he was being held for investigation of a burglary. The car...