Locke v. State
| Decision Date | 03 September 1969 |
| Docket Number | No. 768S118,768S118 |
| Citation | 250 N.E.2d 372,252 Ind. 480 |
| Parties | Douglas Allen LOCKE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Robert Robinson, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen. of Indiana, Aaron T. Jahr, John F. Davis, Deputy Attys. Gen., for appellee.
Appellant was charged with the offense of robbery and upon waiving of jury trial was tried by the Criminal Court of Marion County, Division One and found guilty. Subsequently, appellant was sentenced to the Indiana Reformatory for not less than ten (10) nor more than twenty-five (25) years and costs.
The facts as viewed most favorable to the state are as follows: The victim of the robbery, one Damen MacPherson, on the evening of August 22, 1967 was returning from a ball game when he ran out of gasoline at the intersection on 38th Street and Route 421 in Indianapolis, Indiana. There being no gas stations in the immediate vicinity, MacPherson began walking on Route 421 towards town. As he was walking, two Negro males approached him and asked for a light. When MacPherson responded that he did not have a light one of them grabbed him from behind and the other, the appellant in this case, grabbed him in front, wrestled him to the ground and took his wallet which contained approximately thirty ($30.00) dollars in cash, various items of identification, and an Indiana driver's license. The incident was immediately reported to police.
On September 13, 1967 police officer Dobson observed appellant in the 600 block of West 11th Street making a left turn without giving a signal. When Dobson attempted to stop appellant, appellant proceeded at a high rate of speed through a shopping center and down an adjoining street where the car came to an abrupt stop. Appellant and two companions then jumped out of the car and began running. Appellant was stopped at gunpoint, and when asked for identification produced a driver's license under the name of MacPherson. A .38 caliber revolver was found in the car, which car later proved to be stolen.
Appellant was advised of his rights and taken to the police station where he later admitted to the robbery of MacPherson although he refused to identify his accomplice in that alleged robbery.
At the trial, Locke attempted to establish an alibi, namely that on the evening of the alleged robbery he was attending a party at which various relatives and friends were also present. This testimony was corroborated by appellant's brother who also testified as having been at the same party on the evening of the 22nd. Appellant explained his having possession of MacPherson's driver's license by claiming to have found the wallet along a road about a mile from the scene of the robbery. This alibi appears to have been abandoned however, since it is not brought to issue by argument in appellant's brief.
Appellant's trial counsel filed a timely motion for new trial which by the admission of appellant's court appointed appeals counsel was inadequate on its face to preserve questions relating to the sufficiency of the evidence. Appellate counsel's petition to file a belated amended motion for new trial was granted and the overruling of such motion is the basis for this appeal.
Appellee raises an issue as to the propriety of appellant's appeal based primarily on the procedural aspects of Supreme Court Rules 2--40 and 2--40A. However, by determining this appeal on its merits, it will be unnecessary to determine the technical aspects of the questions raised by the appellee state in its reply brief. For to do so, we would per force be required to discuss the application of said Supreme Court Rules 2--40 and 2--40A which rules have since been abrogated by this court in its adoption of the new Post-Conviction Remedy Rules. This approach is consistent with our desire to decide appeals on their merit where such meritorious issues are plainly and clearly placed before this court.
Appellant's sole assignment of error is the trial court's overruling his belated motion for new trial. In such motion appellant contends that the decision of the court was not sustained by sufficient evidence and was therefore contrary to law.
As noted, appellant was convicted of robbery, which offense is defined by statute at Ind.Ann.Stat. § 10--4101 (1956 Repl.) 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. * * *'
The elements of robbery as set out by the statute are: (1) the...
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Walker v. State
...appeals on their merit where it is practicable for us to do so, and when the issues have been clearly placed before us. Locke v. State (1969), Ind., 250 N.E.2d 372; Lytle v. State (1968), Ind., 241 N.E.2d 366. We therefore will proceed to consider the merits of the appellant's contention th......
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Throop v. State
...appeals on their merits where it is practicable for us to do so and when the issues have been clearly placed before us. Locke v. State (1969), Ind., 250 N.E.2d 372; Lytle v. State (1968), Ind., 241 N.E.2d 366. Furthermore, inasmuch as Supreme Court Rule P.C. 2 authorizes a post conviction r......
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Grimm v. State
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