Lund v. State, No. 575S139

Docket NºNo. 575S139
Citation264 Ind. 428, 345 N.E.2d 826
Case DateMay 03, 1976
CourtSupreme Court of Indiana

Page 826

345 N.E.2d 826
264 Ind. 428
Gerald L. LUND, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 575S139.
Supreme Court of Indiana.
May 3, 1976.

[264 Ind. 429]

Page 827

Jerry W. Newman, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., E. L. Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Judge.

Defendant (Appellant) was charged and convicted of the commission of a felony (robbery) while armed 1 of inflicting injury in the commission of a robbery. 2

Page 828

Trial was by jury, and he was sentenced to consecutive terms of ten (10) years imprisonment and life imprisonment. His appeal raises the following issues.

(1) Sufficiency of the evidence.

(2) Emtitlement to additional peremptory challenges of jurors.

[264 Ind. 430] (3) Correctness of trial court's denial of a motion to discharge based upon the State's failure to comply with discovery orders.

(4) Correctness of trial court's ruling permitting testimony from a State's witness who was not listed in the response to the defendant's motion to produce.

(5) Correctness of trial court's ruling denying a motion for mistrial predicated upon alleged prejudicial display of exhibits.

(6) Correctness of trial court's denial of a mistrial predicated upon alleged prejudice resulting from the grant of a motion for discharge by a co-defendant.

(7) Correctness of State's instructions No. 1 and 2.

(8) Constitutionality of the sentences imposed.

ISSUE I.

Perry Murphy and Margaret Thomas, her infant son and Mark Howard were at Murphy's residence. Murphy and Margaret left briefly, and Howard remained to care for the child. While Murphy and Margaret were gone, the defendant and one Milford Clark broke into the house. Clark had a shotgun, and the defendant had a pistol. Howard was hit in the head with the shotgun and tied while the intruders awaited the return of the others. When Murphy and Margaret returned, they were confronted by defendant and Clark, and Murphy was struck in the head several times. One of the intruders also struck Margaret. The defendant demanded that Murphy give him his money, and Murphy reached for his wallet but it was gone. He started towards the door but was shot in the back by the defendant. Clark at this time was beating Margaret and took $10.00 from her. The defendant then attempted to aid her, and Clark shot him with the shotgun.

The challenge to the sufficiency of the evidence is predicated upon a variance between the proof and the allegations of the charging affidavit. Counts I and II charged a robbery of Perry Murphy, whereas the evidence revealed that the money was taken not from him but from Margaret.

[264 Ind. 431] The evidence in this case disclosed the commission of two crimes under the armed robbery statute, an armed robbery of Margaret and an attempted armed robbery of Murphy. That an armed robbery of Margaret was proved under a charge of an armed robbery of Murphy appears to us to be immaterial under the circumstances of this case, because an attempted armed robbery of Murphy was clearly proved, was proscribed by the statute and was an offense necessarily included in the charging affidavit. The defendant insists that he could not be convicted of the armed robbery of Perry Murphy upon evidence that Milford Clark robbed Margaret Thomas. This cannot be disputed, but the evidence also disclosed that the defendant attempted an armed robbery of Murphy, an offense necessarily included in the charge of armed robber of Murphy. One who is charged with the commission of a crime may be convicted of an attempt to commit the charged offense, if the attempt,

Page 829

as well as the contemplated act is itself proscribed. Crump v. State, (1972) 259 Ind. 358, 287 N.E.2d 342.

Were the penalty provided for the attempt less than that provided for the contemplated robbery, we would be required to remand the cause for sentencing in conformity with the statute and the crime proved. In this case, however, the completed act and the attempt thereof are both proscribed by the same statute and the same penalty is provided for each. We, therefore, see no harm to the defendant that he was sentenced for armed robbery rather than for an attempted armed robbery.

What has been said above with reference to the sufficiency of the evidence upon the charge of armed robbery applies with equal logic to the crime of inflicting an injury in the commission of a robbery, inasmuch as the crime charged necessarily included the crime proved, and the penalties provided are the same.

[264 IND. 432] ISSUE II.

Defendant was tried jointly with one Kelley. Prior to the voir dire examination of the prospective jurors, the defendant moved that the ten peremptory challenges allowed by statute (Ind.Code 1971, § 35--1--30--2, Burns 1975, Acts 1905, ch. 169, § 228) be extended to each defendant individually rather than to them jointly. Defendant challenges this ruling as a denial of due process, in that he was hampered in his right to a jury of his own choosing. We are aware of no right...

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36 practice notes
  • O'Conner v. State, No. 2-378A99
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1978
    ...to have been grounded on the Exclusion of testimony by the State's surprise witnesses. See e. g., Henson, supra; Lund v. State, (1976) 264 Ind. 428, 345 N.E.2d 826; Gregory, supra; Dorsey, supra; Buchanan, supra; Kelley, supra. O'Conner, however, also orally moved for the opportunity to dep......
  • McFarland v. State, No. 2-177A33
    • United States
    • Indiana Court of Appeals of Indiana
    • January 22, 1979
    ...offense of attempted armed robbery is embraced within a charge of the greater offense of consummated armed robbery. Lund v. State, (1976) 264 Ind. 428, 345 N.E.2d 826. But where, as here, the situation is reversed, a charge of the lesser offense does not include the greater offense and a ve......
  • Johnson v. Naugle, No. 88A01-8910-CV-426
    • United States
    • Indiana Court of Appeals of Indiana
    • August 6, 1990
    ...228, Page 1342 trans. denied; Dunkelbarger Construction Co. v. Watts (1986), Ind.App., 488 N.E.2d 355, 358; see also Lund v. State (1976), 264 Ind. 428, 345 N.E.2d 826; Harper v. Goodin (1980), Ind.App., 409 N.E.2d 1129; Brown v. Indiana Dept. of Conservation (1967), 140 Ind.App. 638, 225 N......
  • Kranda v. Houser-Norborg Medical Corp., HOUSER-NORBORG
    • United States
    • Indiana Court of Appeals of Indiana
    • May 5, 1981
    ...may be fixed so long as the right of challenge is not taken away, and reasonable opportunity is given to challenge. Lund v. State, (1976) 264 Ind. 428, 345 N.E.2d 826; Veach v. McDowell, (1962) 133 Ind.App. 628, 184 N.E.2d 149. Local rule 7(C) permits counsel for each party to examine the p......
  • Request a trial to view additional results
36 cases
  • O'Conner v. State, No. 2-378A99
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1978
    ...to have been grounded on the Exclusion of testimony by the State's surprise witnesses. See e. g., Henson, supra; Lund v. State, (1976) 264 Ind. 428, 345 N.E.2d 826; Gregory, supra; Dorsey, supra; Buchanan, supra; Kelley, supra. O'Conner, however, also orally moved for the opportunity to dep......
  • McFarland v. State, No. 2-177A33
    • United States
    • Indiana Court of Appeals of Indiana
    • January 22, 1979
    ...offense of attempted armed robbery is embraced within a charge of the greater offense of consummated armed robbery. Lund v. State, (1976) 264 Ind. 428, 345 N.E.2d 826. But where, as here, the situation is reversed, a charge of the lesser offense does not include the greater offense and a ve......
  • Johnson v. Naugle, No. 88A01-8910-CV-426
    • United States
    • Indiana Court of Appeals of Indiana
    • August 6, 1990
    ...228, Page 1342 trans. denied; Dunkelbarger Construction Co. v. Watts (1986), Ind.App., 488 N.E.2d 355, 358; see also Lund v. State (1976), 264 Ind. 428, 345 N.E.2d 826; Harper v. Goodin (1980), Ind.App., 409 N.E.2d 1129; Brown v. Indiana Dept. of Conservation (1967), 140 Ind.App. 638, 225 N......
  • Kranda v. Houser-Norborg Medical Corp., HOUSER-NORBORG
    • United States
    • Indiana Court of Appeals of Indiana
    • May 5, 1981
    ...may be fixed so long as the right of challenge is not taken away, and reasonable opportunity is given to challenge. Lund v. State, (1976) 264 Ind. 428, 345 N.E.2d 826; Veach v. McDowell, (1962) 133 Ind.App. 628, 184 N.E.2d 149. Local rule 7(C) permits counsel for each party to examine the p......
  • Request a trial to view additional results

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