Peterson v. State, No. 31125

• Docket Nº: No. 31125
• Citation: 250 Ind. 269, 234 N.E.2d 488
• Case Date: March 06, 1968
• Court: Supreme Court of Indiana

Page 488

234 N.E.2d 488 250 Ind. 269 Wayne Marlin PETERSON, Appellant,
v.
STATE of Indiana, Appellee. No. 31125. Supreme Court of Indiana. March 6, 1968.

[250 Ind. 270]

Page 489

Barrie C. Trempler, Fort Wayne, for appellant.

John J. Dillon, Atty. Gen., of Indiana Dennis J. Dewey, Deputy Atty. Gen., for appellee.

MOTE, Judge.

The Appellant was charged by amended affidavit, and convicted below, with the crime of robbery. Omitting the formal part of the charge, it is as follows:

'That on or about the 27th day of February, 1958, at the County of Allen and in the State of Indiana, said Defendant, Wayne Marlin Peterson did then and there unlawfully, feloniously and forcibly and by violence and putting one Byron Bemis in fear, rob, take and steal from the person of the said Byron Bemis lawful currency of the United States of America then and there belonging to Marsh Speedway Market, Inc., and then and there of the value of Fifteen Hundred Dollars ($1,500), being contrary to the form of the statute in such case made and provided.'

After closing the issues by a plea of 'not guilty', the cause was submitted to trial by jury. Appellant was found to be guilty as charged and sentenced according to the statutory provisions.

A Motion for New Trial was filed and overruled, which brings about this appeal. It should be understood that this is the second appeal. See: Peterson v. State (1965) Ind., 206 N.E.2d 371.

A fair statement of the evidentiary facts indicates the following: Appellant was arrested in Kalamazoo, Michigan; he was handcuffed and taken to the police station in connection with a robbery in Fort Wayne, Indiana. At the time of his arrest, Appellant requested the police to drive his automobile to police headquarters. The Appellant consented to a search of both his automobile and his room. In searching Appellant's automobile, the police found a 32 caliber revolver, serial number 63255, and One thousand seventy-one ($1,071.00) Dollars in cash, the latter being concealed in the heater of the [250 Ind. 271] automobile. The cash was placed in a sealed envelope and introduced into evidence, over objection, as State's Exhibit G. After completing the search of the automobile, photographs were taken of the exterior and interior of the car, and of the money, both in its hiding place and on the seat. These photographs were subsequently introduced at trial as State's Exhibit Q, R, S and T. They were all admitted over the Appellant's objections that they were the fruits of an illegal search and therefore violated his constitutional rights. The search of the room where Appellant lived disclosed some newspaper clippings which were introduced as defense Exhibits I, J, K, L, M, N, O and P, and a search of the garage disclosed license plates, State's Exhibit C, identified by a witness as being the plates she observed on an automobile used in the robbery of the Marsh Foodliner Supermarket in Fort Wayne, Indiana. The record discloses no objection to the testimony concerning the search of Appellant's automobile by the arresting officers or of the introduction of the revolver, but only of the photographs of the automobile and cash and of the money itself.

In his brief, Appellant relies solely on specification three (3) of his Motion for New Trial, which is as follows:

'3. The Court erred in overruling the objection of the defendant to the introduction

Page 490

and reading in evidence of States Exhibits Q and R by the State of Indiana during the direct examination of William E. Robinson, a witness called on behalf of the State, and in admitting in evidence said exhibits Q and R. The preliminary questions by defendant, the objection of the defendant and the ruling of the Court are in the following words:

'Preliminary Questions by Mr. Flanagan:

Q. Before the taking of these photographs did you have a search warrant?

A. I did not.

Q. Did anyone tell you that you might do this?

A. Detective Cleveland was along with us at the time.

Q. Did the defendant tell you you might do this?

A. He didn't tell me, no.

[250 Ind. 272] MR. FLANAGAN: We object to the introduction of the photographs for the reason that it is a violation of the constitutional rights of the defendant, both the State and National Constitutions, to enter upon the private property of an American citizen without a search...