McCoy v. State, No. 29546

• Docket Nº: No. 29546
• Citation: 237 Ind. 654, 148 N.E.2d 190
• Case Date: February 27, 1958
• Court: Supreme Court of Indiana

Page 190

148 N.E.2d 190 237 Ind. 654 Homer McCOY, Jr., Bobbie Ray Tallent, Leonard Charles
Miller, Appellants,
v.
STATE of Indiana, Appellee. No. 29546. Supreme Court of Indiana. Feb. 27, 1958.

[237 Ind. 655] Ferdinand Samper, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen. of Indiana, Owen S. Boling, Deputy Atty. Gen., for appellee.

BOBBITT, Judge.

Appellants were charged by separate affidavits with the crimes of entering to commit a felony under Acts 1941, ch. 148, § 5, p. 447, being § 10-704, Burns' 1956 Replacement, and automobile banditry under Acts 1929, ch. 54, § 3, p. 136, being § 10-4710, Burns' 1956 Replacement.

The causes were consolidated for trial and the jury found the appellants guilty of auto banditry, and they were sentenced to the Indiana Reformatory for a determinate

Page 191

period of ten years. A fourth person was tried with appellants and likewise found guilty. However, a mistrial was declared as to him when it was discovered that he was only 17 years of age.

Three questions are presented for our determination.

First: Appellants assert that the trial court erred in giving its Isntruction No. 17 for the reason that 'said instruction was not a correct statement of the law.'

Rule 1-7 of this court provides that objections to the giving of instructions shall be specific, and no error with respect to the giving of instructions shall be available as a cause for a new trial or on appeal, except upon specific objections made. The objection to the giving of Instruction No. 17 does not specifically state in what way or why such instruction is not a correct statement of the law, and in [237 Ind. 656] our opinion is, under the provisions of Rule 1-7, supra, not sufficiently specific to present any error on appeal.

Second: Appellants assert that it was error to permit the introduction of State's Exhibit No. 1 consisting of a five dollar bill which was among the money found in appellants' automobile at the time it was searched by the arresting officers in Tipton, Indiana.

The evidence on this point discloses that a filling station owner in the city of Tipton, Indiana, testified, as a witness for the State, that on the morning of September 23, 1956, he arrived at his filling station at about 6:30 and as he approached the station he saw someone jump 'from behind the station and * * * under a truck' which was 'parked there.' As the man came from under the truck he ran and entered 'an old model Plymouth in two different colors of blue paint,' which was parked nearby, and when he entered the car it 'pulled away.' This witness further testified that he observed that when the man came from under the truck there was grease on his trousers.

The witness also testified that the lock on the door from which he had seen the man run was 'jimmied' and was 'pried at on the frame.' The witness got in his car and attempted to overtake the two-tone Plymouth and, failing in this, he then notified the city police, telling them what had happened and giving them a description of the car and grease spot on the man's trousers.

One of the arresting officers testified that after he was notified by the filling station owner of the attempted break-in, he went to the filling station where he examined the door and 'could see there where they had been prying on the lock of the back door.' He further [237 Ind. 657] testified that he and another officer then started crusing and saw the Plymouth automobile which had been described to them. The witness then testified further, in pertinent part, as follows:

'* * * we pulled them over and said something to them about them driving so fast and then I looked in the back seat and saw this...