Moses v. State

• Decision Date: 05 December 1978
• Docket Number: No. 1077S769,1077S769
• Citation: 382 N.E.2d 934,269 Ind. 698
• Parties: Gene MOSES, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 934

382 N.E.2d 934

269 Ind. 698

Gene MOSES, Appellant, v. STATE of Indiana, Appellee.

No. 1077S769.

Supreme Court of Indiana.

Dec. 5, 1978.

John C. Kite, Terre Haute, for appellant.

Theodore L. Sendak, Atty. Gen., David Michael Wallman, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Moses was charged with first-degree felony murder and first-degree premeditated murder concerning the beating death of Charles Cody in Terre Haute on April 18, 1975. Following a jury trial in the Vigo Superior Court on April 16, 1977, appellant was convicted of second-degree murder. Moses was sentenced to serve from fifteen to twenty-five years imprisonment. This sentence was to run consecutively to a ten year term previously imposed for an unrelated robbery conviction.

The evidence at trial showed that on the evening of April 18, 1975, appellant and three others were riding around Terre Haute in a car driven by Henry Girton. At some point, appellant saw a man on the street direct an obscene gesture toward the car. Appellant and the other men got out of the car and chased the man, Charles Cody, into a hotel. As Mark Weathers, one of the pursuers, entered the hotel, Cody struck him over the head with a 2 X 4. Weathers testified that when he got to his feet he saw appellant strike Cody five or six times with the board. Weathers further stated that as appellant was beating Cody, another man, Richard Mitchell, shouted "Get his wallet." The four men then returned to the car and drove away with appellant still holding the board. The contents of Cody's wallet were later divided among the four. Charles Cody died three days later as a result of head injuries.

Appellant presents five issues for our review. These issues concern: (1) the propriety of charging appellant with both felony and premeditated murder; (2) the receipt of testimony from a former trial judge; (3) the admission into evidence of testimony from a police detective; (4) the denial of appellant's Motion for Judgment on the Evidence as to the count charging felony murder, and; (5) the imposition of the consecutive sentence.

I.

Appellant first argues that the trial court erred in denying his pre-trial Motion to Dismiss the felony murder count. The basis for this motion was appellant's contention that the testimony presented at an oral probable cause hearing failed to show a preconceived intention to commit robbery, the felony underlying the felony murder charge. We find it unnecessary to reach the merits of this argument inasmuch as appellant was not convicted of felony murder. It is well settled that errors, if any, in holding a count of an information or indictment sufficient, are harmless to an accused where he is acquitted on that particular count. Hamilton v. State, (1957) 237 Ind. 298, 300, 145 N.E.2d 391, 392.

In a related argument, appellant asserts that the trial court erred in denying his motion to require the prosecution to elect to proceed upon only one or the other of the two murder counts. It is argued that appellant was unduly burdened and prejudiced by having to defend against both charges. We recently considered and rejected this same argument in Vaughn v. State, (1978) Ind., 378 N.E.2d 859, 862-64. There is no error here.

II.

During the cross-examination of state's witness Mark Weathers, who was one of appellant's accomplices, defense counsel elicited the fact that Weathers had a second-degree murder charge pending against him in the juvenile court of Vigo County based upon the murder of Charles Cody. It was also brought out that Weathers had been dating the daughter of the juvenile court referee and that Weathers was not waived into adult court following a waiver hearing before former Vigo Circuit Judge, C. Joseph Anderson. The obvious purpose of this line of questioning was to raise an inference to the effect that Judge Anderson had been lenient with Weathers due to Weathers' relationship with the daughter of the juvenile court referee. In order to rebut this inference, the state called former Judge Anderson as a witness. After qualifying as an expert, Judge Anderson testified generally as to the purposes and procedures of the juvenile justice system. He then testified that while he normally had the referee conduct juvenile waiver hearings, he chose to do so personally in Weathers' case after learning that Weathers was dating the referee's daughter. Judge Anderson further stated that he and the referee had no agreement whatsoever concerning whether or not to waive Weathers.

Defense counsel objected to any and all testimony by Judge Anderson, arguing that such testimony was improper because the acts of a court of record are known by its records alone and cannot be established by parol testimony. The cases cited by appellant in support of this theory are clearly inappropriate. Those cases dealt with actions by trial courts, when presiding over a particular case, when such actions affected the litigants to that case and were arguably not reflected in the court's records so as to give the litigants notice. See Blum's Lumber and Crating, Inc. v. James, (1972) 259 Ind. 220, 285 N.E.2d 822; State ex rel. Davis v. Achor, (1947) 225 Ind. 319, 75 N.E.2d 154; Anderson v. Indiana State Employment Appeals Commission, (1977) Ind.App., 360 N.E.2d 1040. The issue in the present case did not concern whether or not a trial court's actions were...