Merry v. State

Decision Date07 October 1975
Docket NumberNo. 2--774A184,2--774A184
Citation335 N.E.2d 249,166 Ind.App. 199
PartiesRaymond A. MERRY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Donald D. Chiapetta, Public Defender, Muncie, Dale E. Hunt, Portland, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert M. Lingenfelter, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.


Defendant-appellant Raymond Merry appeals from his conviction for incest, IC 1971, 35--1--82--1, Ind.Ann.Stat. § 10--4206, (Burns 1956), for which he was sentenced to an indeterminate sentence of two to twenty-one years.

The information, as amended, charged Marry with the crime of incest occurring over a time span of from December 5, 1970, to September 5, 1973.


The facts most favorable to the State are: J.A.M. testified as to having sexual intercourse with Raymond Merry. Bernice Merry testified that she and Raymond Merry were married on July 1, 1956. Bernice Merry further testified that on August 17, 1958, her oldest child, J.A.M., was born. J.A.M. testified that § long as she could remember, she had resided with the defendant, Raymond Merry.

At trial, J.A.M. testified that Raymond Merry told her not to tell anybody else about their little secret because if her Mom or anyone else found out, they would call the police and that would leave him in jail. Additionally, after a family argument, he again reminded J.J.M. not to divulge their secret.

Raymond Merry also exercised parental control over the children, as was evidenced by his disciplining J.A.M., living in the same house with J.A.M. and her brother and sister, and living with Bernice Merry, his wife.

The jury determined that all the elements of the offense of incest had been proven beyond a reasonable doubt and convicted Merry of the offense. After Merry's motion to correct errors was overruled, appeal was sought to this court.


Defendant Merry raises 26 errors in his appeal, but we have determined that the enumerated errors present the following ten general issues for our review:

1. Whether the defendant was denied representation of counsel at the hearing to determine whether probable cause existed to issue an arrest warrant.

2. Whether the trial court erred in overruling defendant's motion to dismiss the information because it did not sufficiently inform the defendant of the charge against him and subsequently erred in allowing the State to amend the information.

3. Whether the trial court abused its discretion.

4. Whether the jury was properly admonished.

5. Whether the wife could be a competent witness against her husband.

6. Whether the trial court erred in allowing evidence of prior acts of indecent familiarity to be admitted into evidence.

7. Whether the trial court erroneously admitted hearsay evidence.

8. Whether the trial court erred in refusing to direct the verdict for insufficient evidence on an essential element, or failed to dismiss because of lack of confrontation with the accusers of the defendant.

9. Whether the trial court properly instructed the jury.

10. Whether the trial court committed reversible error in failing to immediately transcribe the evidence to the record and in denying the motion to correct errors for jury misconduct.


Merry contends that he was denied representation of counsel at the preliminary hearing for the probable cause arrest warrant. He claims that the denial of counsel at this critical stage effectively denied him assistance of counsel as required by the United States Constitution and Coleman v. Alabama (1970), 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387.

In Coleman, the United States Supreme Court determined that the Alabama preliminary hearing was a critical stage of the proceedings and so required that counsel be present. The Supreme Court of Indiana in Monroe v. State (1961), 242 Ind. 14, 175 N.E.2d 692, had previous to Coleman declared that a criminal defendant was entitled to counsel at the time proceedings were initiated against him. Subsequent to Coleman, the courts have proclaimed that a criminal defendant is entitled to counsel only after formal proceedings have been initiated against him. Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; McGowan v. State (1973), Ind.App., 296 N.E.2d 667.. Formal proceedings had not yet been initiated against Merry in the preliminary hearing to determine probable cause for the issuance of an arrest warrant. During the preliminary hearing for probable cause, the defendant had not yet been arrested. Therefore, until the defendant had actually been arrested, no critical stage of the proceeding had arisen which entitled the defendant to representation of counsel. One cannot demand representation by counsel before the State has initiated any action against him.


Defendant Merry has presented to this court several arguments involving the information which he believes should entitle him to a reversal. Merry contends the original information was insufficient to adequately inform him of the charges against him because it alleged numerous acts over an extended period of time which did not parallel the form as set out in the statute. Subsequently, the State sought to amend the information by deleting the words 'upon several and numerous occasions.' Merry contends the granting of the State's motion to amend the information was error since the original information was legally insufficient and could not be amended and the information as amended changed the theory on which the prosecution was based.

The form of the indictment or information must substantially comply with the form delineated in the statute. IC 1971, 35--3.1--1--2(e) (Burns Code Ed.). If the accused is specifically informed of the charge against him by the wording of a particular information or indictment, then the information or indictment substantially complies with the statute. Dorsey v. State (1970), 254 Ind. 409, 260 N.E.2d 800; Carter v. State (1973), Ind.App., 301 N.E.2d 524; Noel v. State (1973), Ind.App., 300 N.E.2d 132. As we stated in Layne v. State (1975), Ind.App., 329 N.E.2d 612::

'Affidavits need only be so certain and particular as to enable a court or jury to understand what is to be tried and to fully inform the defendant of the particular charge he is required to meet so that he may prepare an adequate defense.' 329 N.E.2d at 616.

The disputed portion of the information in this particular case related:

'That Raymond A. Merry, late of said County and State, on or about the fifth day of December, 1970, to on or about the fifth day of september, 1973, at and in the County of Jay, State of Indiana, did upon several and numerous occasions, then and there unlawfully, feloniously and incestuously have sexual intercourse with (J.A.M.), being then and there the minor daughter of said Raymond Merry, and the said Raymond Merry then and there well knowing that said (J.A.M.) was his daughter . . .'

The information sufficiently notified Merry of the charge against him, that is, that he had had incestuous intercourse with his daughter knowing of the fatherdaughter relationship. Consequently, the original information did sufficiently inform the defendant of the charges against him.

Merry asserts that the information was too indefinite because it only alleged that the crime was committed sometime within a specific three-year period rather than alleging that it occurred on any one specific date. He quotes the statute as requiring that the information state 'the time and place of the crime with sufficient particularity . . .' However, if the statute is properly quoted, such a construction is patently unreasonable. IC 1971, 35--3.1--1--2(a) provides:

'The indictment or information shall be in writing and allege the commission of a crime by:

(5) Starting the time and place of the crime with sufficient particularity to show that the offense was committed within the statute of limitations applicable to such offense and was committed within the jurisdiction of the court where the charge is to be filed except that the time or place of the offense shall be stated as definitely as can be done where either time or place is of the essence of the offense; . . .' (Our emphasis.)

As to the propriety of allowing the State to amend the information, amendment of an information or indictment is not without restraint, but must conform to the statute, IC 1971, 35--3.1--1--5 (Burns Code Ed.), which states, in part, that:

'(c) Upon motion of the prosecutor, the court (may) at anytime before, during or after the trial permit an amendment to the indictment or information in respect of any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant.

'(e) Notwithstanding any other provision in this section, an indictment or information shall not be amended in any respect which changes the theory or theories of the prosecution as originally stated, or changes the identity of the crime charged; nor may an indictment or information be amended after arraignment for the purpose of procuring a failure to charge or state a crime or legal insufficiency of the factual allegations.' (Our emphasis.)

The test to determine whether the amendment is one of form or substance was set out in Johnson v. State (1972), 258 Ind. 383, 387, 281 N.E.2d 473, 476, where it was stated:

'(I)t has been held that if the defense under the affidavit as it originally stood would be equally available after the amendment is made, and if any evidence the accused might have would be equally applicable to the affidavit in one form as in the other, the amendment is one of form and not of substance. Smith v. State (1969), 252 Ind. 148, 246 N.E.2d 765; State ex rel. Kaufman v. Gould (1951), 229 Ind. 288, 98 N.E.2d 184. Also see, 42 C.J.S. Indictments and Informations § 240, p. 1250.'

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