Myers v. State, No. 29862

Docket NºNo. 29862
Citation168 N.E.2d 220, 240 Ind. 641
Case DateJune 28, 1960
CourtSupreme Court of Indiana

Page 220

168 N.E.2d 220
240 Ind. 641
Ernest Paul MYERS, Appellant,
v.
STATE of Indiana, Appellee.
No. 29862.
Supreme Court of Indiana.
June 28, 1960.

[240 Ind. 642]

Page 221

Herrod Carr, Greensburg, for appellant.

Edwin k. Steers, Atty. Gen., Richard M. Givan, Asst. Atty. Gen., Richard C. Johnson, Deputy Atty. Gen., for appellee.

PER CURIAM.

Appellant was charged by amended affidavit with the crime of second degree burglary under Acts 1941, ch. 148, § 4, p. 447, being § 10-701, Burns' 1956 Replacement, tried by jury, found guilty as charged, and sentenced accordingly.

The affidavit charged appellant with breaking and entering into the 'filling station building of Floyd M. Rayner and Betty Lou Rayner' in Milan, Indiana, being a dwelling house or place of human habitation, and taking away goods, chattels and personal property of Robert O. Rayner and Floyd M. Rayner, d/b/a R. O. Rayner & Son, consisting of razor blades and other items not here in question.

Appellant asserts that the trial court erred in overruling[240 Ind. 643] his motion for a new trial and urges the following alleged errors.

First: It is asserted that the trial court erred in permitting the introduction of four packages of razor blades into evidence over the objection of appellant, on the ground that they were not properly identified as being the property of the victim of the robbery.

Charles K. Spencer, the town marshal of Milan, Indiana, who apprehended and

Page 222

handcuffed appellant as he came out of the filling station, testified, as a witness for the State, that the county sheriff and he searched appellant as soon as the sheriff arrived at the scene of the crime and 'took four packages of razor blades out of his (appellant's) pocket;' and that appellant admitted that he 'got them' in the filling station, which was the subject of the alleged burglary herein, and that they were the property of Rayner. This witness further testified, on cross-examination, that he 'took the blades off' appellant and that they had been in his (the marshal's) possession until he gave them to the prosecuting attorney on the morning of the trial.

The above testimony was sufficient to identify the razor blades as property taken from the filling station and persons described in the affidavit.

Second: Appellant asserts that his right to a fair and impartial trial was violated by the alleged misconduct of the jury in (a) 'that after the jury had been impanelled and during the noon hour intermission and before the defendant introduced any evidence, part of the jurors met in a tavern across from the court house in Versailles, Indiana, and while drinking intoxicating liquors, discussed the case among themselves and stated in words in [and] substance that the defendant was guilty and it would not take them long to convict him;' and (b) 'that the court permitted the jurors at intermissions[240 Ind. 644] to sit in the corridor of the court house', and on one or more occasions, while there, some of the jurors conversed with three of the witnesses for the State.

All of the affidavits pertaining to the discussion by members of the jury at the tavern are based upon hearsay--what the affiant heard someone say--and none of the jurors are...

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28 practice notes
  • Ramirez v. State, No. 45S05–1305–CR–331.
    • United States
    • Indiana Supreme Court of Indiana
    • April 29, 2014
    ...shifts to the State to rebut this presumption of prejudice by showing that any contact or communications were harmless. SeeMyers v. State, 240 Ind. 641, 646, 168 N.E.2d 220, 223 (1960); Oldham v. State, 249 Ind. 301, 305, 231 N.E.2d 791, 793 (1967). If the State does not rebut the presumpti......
  • Parsons v. State, No. 2--1272A138
    • United States
    • Indiana Court of Appeals of Indiana
    • December 28, 1973
    ...462; Smith v. State (1970), 254 Ind. 401, 260 N.W.2d 558; Holding v. State (1967), 244 Ind. 75, 190 N.E.2d 660; Myers v. State (1960), 240 Ind. 641, 168 N.E.2d [159 Ind.App. 168] There was sufficient evidence to show that Parsons was not so intoxicated as to prevent the formation of specifi......
  • York v. State, No. 2-1277A475
    • United States
    • Indiana Court of Appeals of Indiana
    • September 26, 1978
    ...the related question of alleged juror misconduct. See Oldham v. State (1967), 249 Ind. 301, 231 N.E.2d 791, 793; Myers v. State (1960), 240 Ind. 641, 168 N.E.2d 220, 223; Barker v. State (1958), 238 Ind. 271, 150 N.E.2d 680, 683; Trombley v. State (1906), 167 Ind. 231, 78 N.E. 976, 977. Giv......
  • Epps v. State, No. 30102
    • United States
    • Indiana Supreme Court of Indiana
    • September 23, 1963
    ...Bange v. State (1958), 237 Ind. 422, 146 N.E.2d 811. Of course, this court cannot weigh conflicting evidence. Myers v. State (1960), 240 Ind. 641, 168 N.E.2d We find there was sufficient evidence upon which the jury could have based its verdict of guilty. There was enough conflict in the ev......
  • Request a trial to view additional results
28 cases
  • Ramirez v. State, No. 45S05–1305–CR–331.
    • United States
    • Indiana Supreme Court of Indiana
    • April 29, 2014
    ...shifts to the State to rebut this presumption of prejudice by showing that any contact or communications were harmless. SeeMyers v. State, 240 Ind. 641, 646, 168 N.E.2d 220, 223 (1960); Oldham v. State, 249 Ind. 301, 305, 231 N.E.2d 791, 793 (1967). If the State does not rebut the presumpti......
  • Parsons v. State, No. 2--1272A138
    • United States
    • Indiana Court of Appeals of Indiana
    • December 28, 1973
    ...462; Smith v. State (1970), 254 Ind. 401, 260 N.W.2d 558; Holding v. State (1967), 244 Ind. 75, 190 N.E.2d 660; Myers v. State (1960), 240 Ind. 641, 168 N.E.2d [159 Ind.App. 168] There was sufficient evidence to show that Parsons was not so intoxicated as to prevent the formation of specifi......
  • York v. State, No. 2-1277A475
    • United States
    • Indiana Court of Appeals of Indiana
    • September 26, 1978
    ...the related question of alleged juror misconduct. See Oldham v. State (1967), 249 Ind. 301, 231 N.E.2d 791, 793; Myers v. State (1960), 240 Ind. 641, 168 N.E.2d 220, 223; Barker v. State (1958), 238 Ind. 271, 150 N.E.2d 680, 683; Trombley v. State (1906), 167 Ind. 231, 78 N.E. 976, 977. Giv......
  • Epps v. State, No. 30102
    • United States
    • Indiana Supreme Court of Indiana
    • September 23, 1963
    ...Bange v. State (1958), 237 Ind. 422, 146 N.E.2d 811. Of course, this court cannot weigh conflicting evidence. Myers v. State (1960), 240 Ind. 641, 168 N.E.2d We find there was sufficient evidence upon which the jury could have based its verdict of guilty. There was enough conflict in the ev......
  • Request a trial to view additional results

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