Mavrick v. State, 30446

Decision Date07 October 1965
Docket NumberNo. 30446,30446
Citation210 N.E.2d 426,247 Ind. 77
PartiesPaul MAVRICK, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Arch N. Bobbitt, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Frederick J. Graf, Deputy Atty. Gen., for appellee.

MYERS, Judge.

This is an appeal from a judgment of the Miami Circuit Court wherein appellant was convicted of the crime of 'accessory before the fact of grand larceny.' Trial was to the court without the intervention of a jury. Appellant was found guilty as charged in the indictment and was sentenced to the Indiana State Reformatory for a period of not less than one nor more than ten years and fined $200 and costs.

The indictment charged that two persons by name of William Ray and Terry Mills on March 14, 1962, unlawfully and feloniously took, stole and carried away the sum of $652 belonging to one Wood Wright; that before committing the felony, appellant on that date unlawfully and feloniously, counseled, encouraged, hired and commanded the two aforenamed men to commit the felony.

At the trial, Terry Mills was called as a witness for the State and testified that he had committed the crime of grand larceny on March 14, 1962, by stealing the sum of $652 from Wood Wright at his home in Peru; that William Ray was with him; that together they knocked on the door of Wood Wright at midnight and when he opened it, they pushed him back in the house and took his money. Mills said he had known appellant for quite a few years; that just prior to the commission of the crime, there was a conversation between appellant, William Ray and himself at appellant's Pool Parlor wherein appellant told them that Mr. Wright carried a lot of money around with him and asked them to rob him; that they agreed to do so, whereupon appellant drove them out to Wright's home in order to show it to them; that when they returned to the Pool Parlor, appellant took a shirt from the trunk of his car, tore it in half and gave each one-half to cover their faces; that arrangements were made to meet appellant after the robbery. Mills further stated that he gave appellant 'Five Hundred and Thirty some dollars'; that appellant distributed some of it to them at that time, but later on each got one-third of the amount taken; that the reason appellant did not accompany them was because he was 'too big and conspicuous looking or he'd do it himself'; that they had other conversations with appellant concerning other proposed robberies.

William Ray also testified as a witness for the State, and his testimony was of the same nature as that of Terry Mills, corroborating what he had said. At the time of trial, both witnesses were serving sentences of from one to ten years in the State Reformatory.

After judgment was entered, appellant timely filed a motion for new trial in which the only allegation was to the general effect that since the trial and finding of guilty, appellant had discovered new, competent and material evidence which could not have been discovered and produced at trial with reasonable diligence. Three affidavits were attached to the motion. The affiants stated they were being held in the Miami County Jail for various offenses on or about April 2, 1963; that they were in the presence of each other in the 'bull pen' on the second floor where they met both William Ray and Terry Mills, who had been returned from the Reformatory to testify against appellant; that in the course of conversation, William Ray made the statement that his attorney had stated to Ray that if he did not testify against appellant he would receive up to twenty-five years in prison, and that if he did testify against appellant he would only receive a one to ten year sentence. One of the affiants said that William Ray stated he was the only one who could save appellant from going to prison and that appellant had nothing to do with the robberies Ray had 'pulled.' It is to be noted that these affidavits refer only to remarks allegedly made by William Ray and not to anything said by Terry Mills.

Appellant argues that the newly-discovered evidence establishes that appellant was convicted on perjured testimony and tends to establish his innocence. Appellant relies on the rule that if it appears probable that newly-discovered evidence would produce a different result upon a second trial, a new trial should be granted. Ward v. State ...

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5 cases
  • Hicks v. State
    • United States
    • Indiana Supreme Court
    • 8 October 1981
    ...statements would serve only to impeach him. Bradburn v. State, (1971) 256 Ind. 453, 459, 269 N.E.2d 539, 543; Mavrick v. State, (1965) 247 Ind. 77, 81, 210 N.E.2d 426, 428; Guffey v. State, (1979) Ind.App., 386 N.E.2d 692, 694-95. Additionally, from the record, the trial court could have fo......
  • Bledsoe v. State
    • United States
    • Indiana Supreme Court
    • 16 June 1975
    ...(Bradburn v. State (1971), 256 Ind. 453, 269 N.E.2d 539; Spears v. State (1970), 253 Ind. 364, 254 N.E.2d 196; Maverick v. State (1965), 247 Ind. 77, 210 N.E.2d 426; Ward v. State (1956), 235 Ind. 531, 135 N.E.2d 509), but rather of such a character and so convincing as to raise a reasonabl......
  • Cox v. State, 280S49
    • United States
    • Indiana Supreme Court
    • 5 May 1981
    ...In this case, the "newly discovered evidence" was merely impeaching of the testimony of one of the State's witnesses. Mavrick v. State, (1965) 247 Ind. 77, 210 N.E.2d 426. Additionally, it was not of the genre which probably would produce a different result on retrial. For these reasons, th......
  • Bradburn v. State, 970S213
    • United States
    • Indiana Supreme Court
    • 24 May 1971
    ...that newly discovered evidence which serves only to impeach is not such as will require the granting of a new trial. Mavrick v. State (1965), 247 Ind. 77, 210 N.E.2d 426; Shipley v. State (1936), 210 Ind. 253, 2 N.E.2d Further, in the absence of a clear indication that the new evidence woul......
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