Pinkler v. State, No. 1076S350

Docket NºNo. 1076S350
Citation266 Ind. 467, 364 N.E.2d 126
Case DateJuly 06, 1977

Page 126

364 N.E.2d 126
266 Ind. 467
John PINKLER, Appellant,
v.
STATE of Indiana, Appellee.
No. 1076S350.
Supreme Court of Indiana.
July 6, 1977.

[266 Ind. 468] Harriette Bailey Conn, Public Defender, Lawrence D. Giddings, Bobby Jay Small, David P. Freund, Deputy Public Defenders, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was convicted in the Madison Circuit Court of the offenses of inflicting physical injury in the commission of a robbery, Ind.Code § 35-13-4-6 (Burns 1975) and commission of a felony while armed, Ind.Code § 35-12-1-1 (Burns 1975). On appeal he raises two issues:

(1) whether the evidence of appellant's guilt was sufficient; and

(2) whether the trial court committed fundamental error in entering judgment and sentence upon guilty verdicts for both of the offenses charged.

I.

The State contends that appellant has waived the issue of the sufficiency of the evidence by his failure to specify the alleged insufficiency, as required by Ind.R.Tr.P. 59(B). However, Ind.R.Tr.P. 50(A) allows the issue of the sufficiency of the evidence to be raised for the first time on appeal in a criminal case. It follows that if complete omission of this issue from a motion to correct errors does not bar its consideration on appeal, imperfectly specific inclusion will not do so either. Hickland and Collins v. State, No. 1275 S 360 (June 23, 1977).

In the evening hours of November 15, 1975, John Biddle was working at the Convenient Food Mart in Anderson, Indiana. [266 Ind. 469] Around closing time, two men came into the store, made some purchases, and left. Just after closing one of these men returned and asked to buy a jar of mayonnaise. When Mr. Biddle opened the door, the two men, David Montgomery and John Thornton, forced their way inside. Thornton had a pistol; both men demanded the money from the store's safe. When

Page 126

Mr. Biddle brought them the money, Thornton accused him of not bringing all the money, and struck Biddle across the top of the head with his pistol. The pistol discharged wounding Biddle in the cheek and jaw. The men left with the money.

David Montgomery testified that he, Thornton, and appellant went to the Convenient Food Mart on the night in question in an automobile belonging to Montgomery's girlfriend. Montgomery drove and appellant rode in the back seat. Upon arriving at the store, Montgomery and Thornton went in and bought soft drinks, cigarettes and lunch meat. They returned to the car where Thornton told appellant "that it was cool." Pinkler replied that his coat was loud and identifiable. Montgomery offered to go in and "take off," or rob, the store. Appellant gave him a small calibre pistol. Thornton and Montgomery proceeded to commit the robbery described above. When they returned to the car, appellant was behind the wheel and the engine was running, although Montgomery had not left it running. Appellant drove the two men to a nightclub where they split evenly the three hundred dollars taken from the Convenient Food Mart.

Detective Stephen Randolph testified that he had related a statement by Montgomery to appellant during questioning. The statement was that appellant had driven the car away from the scene of the robbery. Appellant admitted the truth of the statement.

Appellant admits that under Indiana Code § 35-1-29-1 (Burns 1975) anyone who aids, abets, counsels, encourages, hires, commands, or otherwise procures the commission of a felony may be charged and tried as though he were...

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15 practice notes
  • Pruitt v. State, No. 15S00-0109-DP-393.
    • United States
    • Indiana Supreme Court of Indiana
    • 13 Septiembre 2005
    ...that justice is done in [Indiana] courts and to provide unity and coherence in judicial application of the laws." Pinkler v. State, 266 Ind. 467, 472, 364 N.E.2d 126, 129 (1977). Wide variances in sentencing results are at least Page 122 likely to occur in jury sentencing as in sentencing b......
  • Terpstra v. Farmers and Merchants Bank, No. 3-1284A340PS
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Septiembre 1985
    ...Ind.App., 433 N.E.2d 74, 77, but we decline to do so here in order to reach the merits of Terpstra's claim. See Pinkler v. State (1977), 266 Ind. 467, 472, 364 N.E.2d 126, 128-29 (right to invoke sanction of this rule belongs to reviewing court for whose benefit the rule was Inadequate Stat......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Mayo 1981
    ...are circumstances which a jury may consider in determining whether appellant knowingly assisted the burglars. Pinkler v. State, (1977) 266 Ind. 467, 364 N.E.2d 126. Moreover, presence at the scene in connection with other circumstances tending to show participation in the crime may be suffi......
  • Lugar v. State ex rel. Lee, No. 2-675A145
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Abril 1978
    ...for deciding cases on their merits whenever possible. The Supreme Court reemphasized this principle in Pinkler v. State (1977), Ind., 364 N.E.2d 126, "Rule 8.3(A) was adopted by this Court to facilitate our thorough, orderly, and expeditious consideration of appeals. It confers no right on ......
  • Request a trial to view additional results
15 cases
  • Pruitt v. State, No. 15S00-0109-DP-393.
    • United States
    • Indiana Supreme Court of Indiana
    • 13 Septiembre 2005
    ...that justice is done in [Indiana] courts and to provide unity and coherence in judicial application of the laws." Pinkler v. State, 266 Ind. 467, 472, 364 N.E.2d 126, 129 (1977). Wide variances in sentencing results are at least Page 122 likely to occur in jury sentencing as in sentencing b......
  • Terpstra v. Farmers and Merchants Bank, No. 3-1284A340PS
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Septiembre 1985
    ...Ind.App., 433 N.E.2d 74, 77, but we decline to do so here in order to reach the merits of Terpstra's claim. See Pinkler v. State (1977), 266 Ind. 467, 472, 364 N.E.2d 126, 128-29 (right to invoke sanction of this rule belongs to reviewing court for whose benefit the rule was Inadequate Stat......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Mayo 1981
    ...are circumstances which a jury may consider in determining whether appellant knowingly assisted the burglars. Pinkler v. State, (1977) 266 Ind. 467, 364 N.E.2d 126. Moreover, presence at the scene in connection with other circumstances tending to show participation in the crime may be suffi......
  • Lugar v. State ex rel. Lee, No. 2-675A145
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Abril 1978
    ...for deciding cases on their merits whenever possible. The Supreme Court reemphasized this principle in Pinkler v. State (1977), Ind., 364 N.E.2d 126, "Rule 8.3(A) was adopted by this Court to facilitate our thorough, orderly, and expeditious consideration of appeals. It confers no right on ......
  • Request a trial to view additional results

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