McGill v. State, No. 767S52

Docket NºNo. 767S52
Citation17 Ind.Dec. 504, 252 Ind. 293, 247 N.E.2d 514
Case DateMay 19, 1969

Page 514

247 N.E.2d 514
252 Ind. 293
Jerome McGILL, Appellant,
v.
STATE of Indiana, Appellee.
No. 767S52.
Supreme Court of Indiana.
May 19, 1969.

[252 Ind. 294]

Page 515

Frank E. Spencer, Indianapolis, for appellant.

John J. Dillon, Atty. Gen. of Indiana, Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for appellee.

JACKSON, Judge.

Appellant and another, Robert Chandler, were charged by affidavit with the crime of Second Degree Burglary as defined by Acts 1941, ch. 148, § 4, p. 447, being Burns' Ind.Ann.Stat. § 10--701(b) (1956 Repl.), which reads in pertinent part as follows:

'(b) Whoever breaks and enters into any boat, wharf-boat, or other water-craft, interurban-car, street-car, railroad-car, automobile, airplane, or other air-craft, or any building or structure other than a dwelling-house or place of human habitation, with the intent to commit a felony therein, shall be guilty of burglary in the second degree, and upon conviction shall be imprisoned not less than two (2) years nor more than five (5) years and be disfranchised and rendered incapable of holding any office of trust or profit for any determine period: Provided, however, That the court shall have power to suspend prison sentence and place the defendant on probation in accordance with existing law.'

Page 516

The affidavit charging appellant and his co-defendant with the alleged crime in pertinent part reads as follows:

'BE IT REMEMBERED, That, on this day before me, NOBLE R. PEARCY Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came WILLIAM R. HASTINGS who, being duly sworn, upon his oath says that ROBERT CHANDLER and JEROME McGILL on or [252 Ind. 295] about the 1st day of November, A.D. 1966, at and in the County of Marion in the State of Indiana, did then and there unlawfully, feloniously and burglariously break and enter into the building and structure of ANTHONY WAYNE OIL CORPORATION, then and there situate at 201 NORTH CAPITOL AVENUE, City of Indianapolis, County of Marion, State of Indiana, which said building and structure was not a place of human habitation, with the intent to commit a felony therein, to-wit: to unlawfully and feloniously and knowingly obtain and exert unauthorized control over property of said ANTHONY WAYNE OIL CORPORATION and to deprive said ANTHONY WAYNE OIL CORPORATION permanently of the use and benefit of said property, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.

/s/ William R. Hastings'

Appellant, on December 21, 1966, waived arraignment and entered a plea of not guilty to the charge embraced in the affidavit. Thereafter, on April 13, 1967, appellant and his co-defendant each waived trial by jury, consented to and were tried by the court without the intervention of a jury. At the conclusion of the State's evidence, defendants each and severally moved for a discharge. The motions were overruled as to each defendant. Whereupon appellant McGill rested. Defendant Chandler presented evidence in his behalf and rested. The State rested. The defendants each and severally moved for discharge. The court then entered a finding of Guilty as charged by the affidavit. Pre-sentence investigation was ordered and sentencing set for April 27, 1967 at 1:30 P.M.

Thereafter, on April 27, 1967, the court having examined the pre-sentence investigation report filed by the Probation Department and both defendants and their counsel and the State of Indiana by a deputy prosecutor being present, the court sentenced appellant, age 27, to the Indiana State Reformatory for no less than 2 yeaers nor more than 5 years, [252 Ind. 296] and costs. The co-defendant, age 31, who did not appeal, was sentenced to the Indiana State Prison for a like term.

Thereafter, on May 1, 1967, appellant filed his motion for a new trial. Such motion, with accompanying memorandum, omitting formal parts, reads in pertinent part as follows:

'MOTION FOR NEW TRIAL

Comes now the defendant, Jerome McGill, and moves for a new trial in the above captioned case for the following reasons:

1. The decision of the Court is contrary to law;

2. The decision of the Court is not sustained by sufficient evidence;

3. Errors of law occurring at the trial.

WHEREFORE, the defendant, Jerome McGill, requests that a new trial be granted herein and for all other relief in the premises.

/s/ Philip R. Melangton, Jr.

Philip R. Melangton, Jr.

Attorney for defendant

Jerome McGill

MEMORANDUM

The Court erred in admitting state's exhibit #2, a knife, over the defendant McGill's objection. Said knife, according

Page 517

to the testimony of the police officer, was found upon the defendant Chandler and was not connected with the defendant McGill.

The Court erred in overruling defendant's motion for discharge made at the close of the state's case and at the close of all the evidence for the following reasons:

The defendant Chandler was seen inside the structure but not the defendant McGill. The defendant McGill was seen only on the sidewalk and was seen doing nothing and was only an innocent bystander. Mere presence at the scene of a crime does not make the defendant an accomplice.

[252 Ind. 297] Police Officer Kerins did not identify which of the defendants was Jerome McGill but only identified the defendants collectively as Chandler and...

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43 practice notes
  • Fox v. State, No. 2-376A109
    • United States
    • January 30, 1979
    ...defendants were present acting in concert but there were Other circumstances tending to show participation. See McGill v. State (1969), 252 Ind. 293, 247 N.E.2d 514. Such other circumstances were described by our Supreme Court in Cotton v. State (1965), 247 Ind. 56, 211 N.E.2d Page 1174 (T)......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • May 6, 1981
    ...may be sufficient to sustain a conviction. Wright v. State, (1977) 266 Ind. 327, 363 N.E.2d 1221; McGill v. State, (1969) 252 Ind. 283, 247 N.E.2d 514. The evidence as set out above showing that Munde knowingly aided three other men to choose, arrive at, and flee from the site of a burglary......
  • Hoskins v. State, No. 281S32
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1982
    ...in the crime may be sufficient to sustain a conviction. Wright v. State, (1977) 266 Ind. 327, 363 N.E.2d 1221; McGill v. State, (1969) 252 Ind. 293, 247 N.E.2d 514. Further, Appellant was a former tenant of that motel and told one witness, Delores Watson, on the evening of October 19, 1979,......
  • Wright v. State, No. 776S199
    • United States
    • Indiana Supreme Court of Indiana
    • June 10, 1977
    ...with other circumstances tending to show participation in the crime may be sufficient to sustain a conviction. McGill v. State, (1969) 252 Ind. 293, 247 N.E.2d In looking at the other two elements raised by the Appellant, intent and malice, Shackelford v. State, (1976) Ind., 349 N.E.2d 150,......
  • Request a trial to view additional results
43 cases
  • Fox v. State, No. 2-376A109
    • United States
    • January 30, 1979
    ...defendants were present acting in concert but there were Other circumstances tending to show participation. See McGill v. State (1969), 252 Ind. 293, 247 N.E.2d 514. Such other circumstances were described by our Supreme Court in Cotton v. State (1965), 247 Ind. 56, 211 N.E.2d Page 1174 (T)......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • May 6, 1981
    ...may be sufficient to sustain a conviction. Wright v. State, (1977) 266 Ind. 327, 363 N.E.2d 1221; McGill v. State, (1969) 252 Ind. 283, 247 N.E.2d 514. The evidence as set out above showing that Munde knowingly aided three other men to choose, arrive at, and flee from the site of a burglary......
  • Hoskins v. State, No. 281S32
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1982
    ...in the crime may be sufficient to sustain a conviction. Wright v. State, (1977) 266 Ind. 327, 363 N.E.2d 1221; McGill v. State, (1969) 252 Ind. 293, 247 N.E.2d 514. Further, Appellant was a former tenant of that motel and told one witness, Delores Watson, on the evening of October 19, 1979,......
  • Wright v. State, No. 776S199
    • United States
    • Indiana Supreme Court of Indiana
    • June 10, 1977
    ...with other circumstances tending to show participation in the crime may be sufficient to sustain a conviction. McGill v. State, (1969) 252 Ind. 293, 247 N.E.2d In looking at the other two elements raised by the Appellant, intent and malice, Shackelford v. State, (1976) Ind., 349 N.E.2d 150,......
  • Request a trial to view additional results

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