McPhearson v. State, 30383
| Docket Nº | No. 30383 |
| Citation | 247 Ind. 579, 219 N.E.2d 907 |
| Case Date | September 29, 1966 |
| Court | Supreme Court of Indiana |
Page 907
v.
STATE of Indiana, Appellee.
[247 IND 579]
Page 908
James E. Rocap, Jr., Indianapolis, for appellant.John J. Dillon, Atty. Gen., Frederick J. Graf, Deputy Atty. Gen., for appellee.
JACKSON, Judge.
Appellant was, on October 5, 1961, charged by affidavit with the crime of robbery and commission of a felony while armed with a deadly weapon.
[247 IND 580] Thereafter, on March 2, 1962, he was charged by amended affidavit in four counts as follows: Count I charged appellant with the crime of robbery by taking the sum of $2,500.00 from one William Russell after putting him in fear. Count II charged appellant with taking property of the Ten High Brooks Bar in the sum of $2,500.00 while armed with a deadly weapon. Count III charged appellant had been previously convicted of a felony, to-wit: vehicle taking in the Circuit Court of Vermillion County, Indiana, and also convicted of a felony, to-wit: vehicle taking in the Circuit Court of Tipton County, Indiana. Court IV alleged the same prior felony convictions.
Appellant was arraigned and entered a plea of not guilty.
The issue of fact was whether appellant was the person who committed the alleged robbery by putting William Russell in fear, whether he was the person who took the goods from the Ten High Brooks Bar while armed with a deadly weapon and whether the appellant was the same person who had been convicted of a felony in the Vermillion Circuit Court and the Tipton Circuit Court.
Appellant filed Notice of Alibi on July 31, 1962, and on September 12, 1962, the State filed its answer to appellant's Notice of Alibi.
Trial was had by jury resulting in finding and verdict on Count II of the amended affidavit as follows:
'We, the Jury, find the defendant Earl Franklin McPhearson, guilty of Commission of A Felony While Armed with Deadly Weapon as charged in Count Two of the Amended Affidavit and that he be imprisoned for the term of Ten (10) years, and we further find the defendant's age is 37 years.'
The verdict as to Count IV of the amended affidavit was as follows:
'We, the Jury, find the defendant, Earl Franklin McPhearson has on two or more separate and previous occassions (sic) has been convicted, sentenced and imprisoned in a penal institution for felonies as described and charged in Count Four (4) of the Amended Affidavit.'
[247 IND 581] Upon the verdict of the jury, the court entered judgment against the appellant under Count II of the amended affidavit and sentenced him to the Indiana State Prison for a determinate period of Ten (10) years. The court further sentenced appellant to the Indiana State Prison for life on Count IV of the amended affidavit.
Thereafter, appellant within him, filed his motion for a New Trial, which motion was overruled on December 20, 1962.
Appellant's Motion for New Trial contined eleven (11) grounds, the first of which contined fifty-six parts and the remaining ten each contined one or more. In view of the length of the motion for new trial only those grounds specifically argued and relied on will be discussed later on in this opinion.
The appellant's Assignment of Errors contained the single specification: '1. The Court erred in overruling appellant's motion for new trial.'
Appellant has not here questioned the sufficiency of the evidence to sustain the jury's verdict as to either count of the amended affidavit, hence in the interest of brevity no re sume of the evidence is included herein.
Page 909
The grounds of the motion for new trial argued in the brief and relied on by appellant are as follows:
Ground No. 1. Part 'b' reading as follows:
'Error of law occurring at the trial in this that the Court erred in overruling defendant's motion to withdraw submission of this cause, and to discharge the Jury and to declare a mistrial on account of the highly prejudicial remark of the the witness William Arthur Yohe. The inflammatory answer, the motion thereon, and the reading of the Court are as follows: * * * .'
Ground No. 1, part 'c' reading as follows:
'Error of law occurring at the trial in this that the Court erred in overruling defendant's motion to withdraw the submission of this cause and to discharge the Jury, and to declare a mistrial in account of the highly prejudicial question propounded by the Deputy Prosecutor, John Tranberg[247 IND 582]...
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Underhill v. State, 181S17
...the habitual offender phase, for the charges had not been reduced to convictions. Ind.Code § 35-50-2-8, supra; McPhearson v. State, (1966) 247 Ind. 579, 219 N.E.2d Defendant's contention cannot be characterized as wholly without merit; some prejudice could arguably inure to defendant by vir......
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Cartwright v. Harris, 2-877-A-327
...Thus, although each party is entitled to a jury instruction upon his theory of the case, Indianapolis Horse Patrol, Inc. v. Ward, (1966) 247 Ind. 579, 217 N.E.2d 626, we believe the jury in this case, in interpreting the principle enunciated in the tendered instruction, mistakenly could hav......
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McPhearson v. State, 873S155
...now urges its application to his conviction in 1962 which was affirmed by this Court on direct appeal in 1966. McPhearson v. State (1966), 247 Ind. 579, 219 N.E.2d We recently handed down Prophet v. State (1974), Ind., 315 N.E.2d 699 holding that Prophet was not entitled to have his convict......
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Reese v. State, 582S169
...ordering it stricken from the record and ordering the jury not to consider the same, cured the defect.' " McPhearson v. State, (1966) 247 Ind. 579, 583, 219 N.E.2d 907, Austin, supra, at 133. In the case at bar, as in Walters and Austin, the answer given by Parker was not deliberately induc......
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Underhill v. State, 181S17
...the habitual offender phase, for the charges had not been reduced to convictions. Ind.Code § 35-50-2-8, supra; McPhearson v. State, (1966) 247 Ind. 579, 219 N.E.2d Defendant's contention cannot be characterized as wholly without merit; some prejudice could arguably inure to defendant by vir......
-
Cartwright v. Harris, 2-877-A-327
...Thus, although each party is entitled to a jury instruction upon his theory of the case, Indianapolis Horse Patrol, Inc. v. Ward, (1966) 247 Ind. 579, 217 N.E.2d 626, we believe the jury in this case, in interpreting the principle enunciated in the tendered instruction, mistakenly could hav......
-
McPhearson v. State, 873S155
...now urges its application to his conviction in 1962 which was affirmed by this Court on direct appeal in 1966. McPhearson v. State (1966), 247 Ind. 579, 219 N.E.2d We recently handed down Prophet v. State (1974), Ind., 315 N.E.2d 699 holding that Prophet was not entitled to have his convict......
-
Reese v. State, 582S169
...ordering it stricken from the record and ordering the jury not to consider the same, cured the defect.' " McPhearson v. State, (1966) 247 Ind. 579, 583, 219 N.E.2d 907, Austin, supra, at 133. In the case at bar, as in Walters and Austin, the answer given by Parker was not deliberately induc......