Loveless v. State, 29853

• Citation: 166 N.E.2d 864,240 Ind. 534
• Decision Date: 17 May 1960
• Docket Number: No. 29853,29853
• Parties: Gerald D. LOVELESS, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 864

166 N.E.2d 864

240 Ind. 534

Gerald D. LOVELESS, Appellant, v. STATE of Indiana, Appellee.

No. 29853.

Supreme Court of Indiana.

May 17, 1960.

Rice & Van Stone, Evansville, for appellant.

Edwin K. Steers, Atty. Gen., Richard M. Givan, Asst. Atty. Gen., Richard C. Johnson, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

The appellant, Gerald D. Loveless, was charged by amended affidavit with two other co-defendants, Carroll Nelson and Ronald Brewster, with the crime of second degree burglary. Acts 1941, ch. 148, § 4, p. 447, being § 10-701(b), Burns' 1957 Repl. Nelson and Brewster pleaded guilty. The appellant was tried by jury and found guilty as charged. He was sentenced accordingly.

Appellant's sole assignment of error is the overruling of his motion for a new trial which contains twenty-nine separate specifications. Wee need not set these out separately, since they may be grouped under two general headings, namely (1) claimed error because of the introduction of evidence of crimes other than that with which the appellant was charged and convicted, and (2) alleged misconduct on the part of the prosecuting attorney because of an attack made upon the personal character of appellant's counsel.

Appellant was charged with burglarizing what was known as the Ritchie Service Station in Warrick County, Indiana. The State, over the objections of the appellant, introduced evidence with reference to prior burglaries of the Miller Hardware Store at Elberfeld, Indiana, the Rollin Inn Truck Stop at Somerville, Indiana, the Nelson Service Station, near Winslow, Indiana and the McCandless Grocery, near Arthur, Indiana. The appellant strenuously objected to the introduction of this evidence of other crimes alleged to have been committed by the appellant, stating:

'Now again if it pleases the Court, I'm objecting to the introduction of this evidence because at this particular time there is no way that they have shown any connection between this defendant and that burglary, and of course I again renew my objection to proof of independent crimes which is not charged.'

At another point the objection states:

'* * * We were not aware of the fact that evidence connecting him with any other burglaries would be produced. It comes to us as a complete surprise. We are wholly unprepared to meet those charges. We believe if given time we will produce evidence to refute anything that this man testifies about those burglaries, so at this time I'm interposing an objection to the question, and in the event that the Court overrules me I'm asking for a continuance of this cause and give us sufficient time to meet the charges that are produced in Court without any warning on the part of the State's--the Prosecuting Attorney for the State of Indiana.'

The co-defendants, Brewster and Nelson, took the stand for the State and testified that the appellant waited in the car outside the Ritchie Service Station while they burglarized the place, and that he had urged them to engage in such burglaries, including those named above, and that he would dispose of the stolen property at his place of business.

The State's main contention seems to be that this showed 'a common scheme or plan' among the appellants, Brewster and Nelson, to burglarize various places.

If this be true, it seems to us that 'a common scheme or plan' such as that claimed by the State, would present a crime of conspiracy and such a crime could have been properly charged. Under such a charge the full scheme and plan could have been developed in the evidence. Under a charge of conspiracy the appellant would have been properly advised and informed of the nature of the charge against him. The case of Durke v. State, 1932, 204 Ind. 370, 183 N.E. 97 is very informative upon this point.

The State further contends that some of the property taken at each one of the burglaries was found at appellant's place of business and therefore evidence of the burglary was material and relevant in explaining possession of such property. For example, a hand-brace taken from the Miller Hardware Store was found at appellant's place of business; a ratchet with the initials 'R. R.' taken from the Ritchie Service Station was also found at the same place; some tires taken from the Nelson Service Station were found at the Loveless Truck Stop. Evidence that the appellant had property belonging to third parties in his possession at the time he also possessed property taken in a burglary from the Ritchie Service Station, with which he was specifically charged, would have no materiality in the case unless evidence of other crimes in which that property was taken was competent for some proper reason.

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, Symmes Ed., § 384, p. 236; Hergenrother v. State, 1939, 215 Ind. 89, 18 N.E.2d 784; Sylvester v. State, 1933, 205 Ind. 628, 187 N.E. 669; 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. Smith v. State, 1939, 215 Ind. 629, 21 N.E.2d 709; Crickmore v. State, 1938, 213 Ind. 586, 12 N.E.2d 266; Zimmerman v. State, 1921, 190 Ind. 537, 130 N.E. 235.

It is said in these cases that the purpose of the evidence is to identify the defendant where he denies his presence at the scene of the crime. Where the question of motive or intent has been denied and is made an issue, a series of similar transactions, even though they involve other crimes, may be shown to prove intent, motive or habit. This is particularly true where the charge involves fraud or deceit and the passing of bad checks and such similar practice. Shneider v. State, 1942, 220 Ind. 28, 40 N.E.2d 322. Where insanity is an issue in a criminal case, evidence pertinent to that issue is competent, even though it may incidentally show the commission of another offense. Baker v. State, 1...