Madden v. State
| Citation | 254 Ind. 628,261 N.E.2d 847 |
| Decision Date | 14 September 1970 |
| Docket Number | No. 169S14,169S14 |
| Parties | David O. MADDEN v. STATE of Indiana. |
| Court | Supreme Court of Indiana |
Lawrence D. Renfro, New Castle, for appellant.
Theodore L. Sendak, Atty. Gen. of Ind., Aaron T. Jahr, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from a judgment of the Henry Superior Court wherein the appellant, following a trial by jury, was convicted of first degree burglary and theft against property.
This action was commenced on January 8, 1968, by the filing of an affidavit in two counts. The affidavit reads in pertinent part as follows:
'(T)hat David Madden on the 6th day of January, 1968 at and in the County
of Henry, and State of Indiana, did then and there unlawfully, feloniously and burglariously break and enter into the dwelling house of Clifford Denney [254 Ind. 629] (sic), situate at 925 S. 14th Street, New Castle, Henry County, Indiana, in which said Clifford Denney (sic) there lived, with intent to commit a felony, to-wit: knowingly obtain and exert unauthorized control over the property of the said Clifford Denney (sic), with intent to permanently deprive the said Clifford Denney (sic) of the use and benefit thereof, by taking, stealing and carrying away said property, the said Clifford Denney (sic) having the right to the possession of said property, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.
COUNT II
And this affiant further says, upon his oath that David Madden, on the 6th day of January A.D. 1968, at and in the County of Henry, and State of Indiana, did then and there unlawfully commit the crime of theft in that he knowingly, unlawfully and feloniously obtained and exerted unauthorized control over property of Clifford Denney (sic) of 925 S. 14th Street, New Castle, County of Henry, State of Indiana, to-wit: one (1) .22 Ruger revolver of the approximate value of Thirty-five Dollars ($35.00) intending to deprive the said Clifford Denney (sic) permanently of the use and benefit of said property, by taking, stealing and carrying away said property, the said Clifford Denney (sic) having the right to the possession thereof, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.'
Appellant was arraigned January 11, 1968, and entered a plea of not guilty to the crimes charged. The trial of this cause commenced September 30, 1968; on October 1, 1968, the jury returned its verdict finding appellant guilty on both counts as charged in the affidavit. The court thereupon ordered a pre-commitment report be filed by the Probation Officer of said county. On October 11, 1968, the court sentenced appellant, on Count I (First Degree Burglary), to the Indiana State Prison for a period of not less than ten (10) nor more than twenty (20) years and disfranchised him and rendered him incapable of holding any office of trust or profit for a period of one year. The court also sentenced appellant on Count II (Theft) to the Indiana State Prison for a period of one year.
On October 31, 1968, appellant filed his motion for new trial and affidavit in support thereof, said motion and affidavit reading in pertinent part as follows:
'The defendant in the above entitled cause moved the Court for a new trial herein on each of the following grounds:
1. The verdict of the jury is not sustained by sufficient evidence.
2. The verdict of the jury is contrary to law.
3. Error of law occurring during the trial in that the Court refused to grant defendant's request for a change of venue from the County upon defendant informing the Court that he believed he could not have a fair trial in this County and the further reason that the Deputy Prosecuting Attorney had been the defendant's attorney on other matters including matters which were still pending.
4. Error of law occurring during the trial in refusing to grant the defendant's motion for directed verdict filed at the close of State's evidence.
5. Error of law occurring in the giving of Court's instructions numbered 11 and 14 over objection of defendant.
6. The verdict of the jury is based on alleged statements of the defendant to the effect that he did break and enter without any proof in the record of the defendant having even been near the scene of the crime excepting for the extra-judicial statements of the defendant. The corpus delicti of the crime was never established.
7. Further prejudicial error occurring when the bailiff carried an answer to the jury from the Judge concerning a question in the minds of the jurors. The defendant was entitled to be present at all times when the jury was given any additional word or instruction by the Court. At the time this question and answer was given, the defendant was waiting in jail for the jury to return.
8. Further error and misconduct occurring when the bailiff in charge of the jury requested that the Deputy Prosecuting Attorney watch the jury for him while he ran an errand.
9. The right guaranteed to the defendant by Article I, Section 14, of the Indiana Constitution and the fifth and fourteenth amendments to the U.S. Constitution were violated in that defendant was required to testify against himself through alleged statements admitted in evidence, and in not being advised of his Constitutional rights.
10. The Court committed reversible error in permitting the jury to speculate as to guilt, upon illegal, insufficient and hearsay evidence, and extra judicial statements and in allowing the jury to pyramid inference upon inference.
11. The Court erred in not instructing the jury concerning the lesser offenses included in the charge of First Degree Burglary.
12. That the jury was not properly instructed and did not understand the law in that upon their finding of guilty of First Degree Burglary they disfranchised defendant for a term of one (1) year which proves confusion as to the law and their duties as jurors * * *.'
'The affiant, Lawrence D. Renfro, being first duly sworn upon his oath says:
1. That he is the attorney for the defendant David Madden.
2. The while the jury was deliberating the Bailiff approached the Judge with a question from the jury which question is not known to affiant but the Judge's answer of 'they have no choice in the matter' or words to that effect leads affiant to believe that it did concern the case and indicated a violation of defendant's right to be present at all times. (Ewbanks Indiana Criminal Law Vol. 1, Sec. 440 and cases there cited)
3. That while the Jury was deliberating the bailiff in charge requested that the Deputy Prosecuting Attorney 'watch' the jury for him while he was absent for a few minutes.
That the foregoing statements are true and are based on knowledge of this affiant who was present and heard the remarks above.'
Appellant's motion for new trial was overruled on November 8, 1968. Appellant's sole Assignment of Error is that:
From the evidence adduced at trial, viewed in a light most favorable to the State, it appears that on January 6, 1968, Clifford Denny was the owner of certain property located at 925 S. 14th Street in New Castle, Indiana, said property being a house of human habitation. On said date Denny and his family went to Markleville to visit friends, and upon their return Denny discovered that his house had been broken into and a .22 pistol, holster, and belt stolen. A few days later appellant went to Denny's home and admitted that it was he who had broken into the residence and had stolen the pistol. He returned the stolen property at such time. Appellant stated that he was drunk at the time he broke into complainant's home, and then he begged Denny not to report the incident to the police. Denny said he would not press charges against appellant because he had returned the stolen property, but apparently did so later.
Mrs. Denny testified that when appellant came to the house he told her that he thought he was going into the home of a relative of his, one Vernon Thompson, to get a shotgun. For some time prior to this incident, Thompson had rented certain apartments from Denny on the property in question.
Edna Bryant, with whom appellant had been living at the time of this incident, testified that she had seen appellant in her home on the evening of January 6, 1968, with a pistol. She stated that appellant told her to get rid of the holster and belt, and that he had previously found the pistol.
On appeal appellant initially argues that the trial court committed reversible error in giving its final instructions numbered 11 and 14 over the objections of his counsel. Instruction No. 11 reads as follows:
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