Pinkston v. State, 3--574A91

Docket NºNo. 3--574A91
Citation163 Ind.App. 633, 325 N.E.2d 497
Case DateApril 16, 1975
CourtCourt of Appeals of Indiana

Page 497

325 N.E.2d 497
163 Ind.App. 633
Veronica Ann PINKSTON, Defendant-Appellant,
STATE of Indiana, Plaintiff-Appellee.
No. 3--574A91.
Court of Appeals of Indiana, Third District.
April 16, 1975.

Robert S. Bechert, Deputy Public Defender, Fort Wayne, for defendant-appellant.

Page 498

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for plaintiff-appellee.


The appellant, Pinkston, was convicted of the unlawful sale of narcotics (heroin) in a trial to the court. The sole error assigned is that the court erred in denying a motion [163 Ind.App. 634] for a directed finding made at the conclusion of the state's case in chief.

The trial court denied the motion and Pinkston elected to proceed with the presentation of her evidence. At the conclusion of all the evidence no effort was made to renew the motion. The motion to correct errors and Pinkston's argument on appeal do not assert that the decision was not sustained by the evidence or was contrary to law.

We are thus presented with the question of whether any error has been preserved for appeal. We conclude that it has not.

IC 1971, 35--4.1--2--2, Ind.Ann.Stat. § 9--1102 (Burns 1974 Supp.) and Indiana Rules of Procedure, Criminal Rule 21, provide for application of the rules of civil procedure to criminal trials when those rules do not conflict with express rules of criminal procedure.

Rule TR 41(B) is applicable to a criminal trial. It provides the mechanism for a 'directed finding' in a trial to the court by permitting a motion for involuntary dismissal based upon failure of proof.

Other decisions have already noted that TR 41(B) and TR 50 (providing for judgment on the evidence in jury trials) are to be construed as companion rules and do not materially modify the practice formerly followed in Indiana. See, Hoosier Ins. Co. v. Ogle (1971), Ind.App., 276 N.E.2d 876; Ohio Cas. Ins. Co. v. Verzele (1971), 148 Ind.App. 429, 267 N.E.2d 193.

Traditionally, where such a motion was denied, the movant was put to an election. She could stand on the record and seek reversal on appeal, or she could proceed to present her own evidence. 1 If she elected to proceed, the introduction of evidence constituted a waiver of any error in the ruling on the [163 Ind.App. 635] motion. 2 Delphos Hoop Co. v. Smith (1911), 176 Ind. 29, 95 N.E. 309; Berry v. State Bank of Otterbein (1935), 99 Ind.App. 655, 193 N.E. 922; see, also, cases collected in 26 West's Indiana Digest, Trial, k420.

While some of the reasons for this waiver doctrine are to be found in the code pleading theories of another day, a more enduring reason lies in the recognition of substance over...

To continue reading

Request your trial
16 cases
  • Martin v. State, 2-976A328
    • United States
    • Indiana Court of Appeals of Indiana
    • 21 Febrero 1978
    ...Ind.App., 345 N.E.2d 257, 258; Barrett v. State (1st Dist. 1975) Ind.App., 329 N.E.2d 58, 60; Pinkston v. State (3d Dist. 1975) Ind.App., 325 N.E.2d 497, 4 Our possession statutes refer specifically to "knowing possession." 5 "Control" means the ability to exercise a restraining or directin......
  • Murphy v. State, 975S245
    • United States
    • Indiana Supreme Court of Indiana
    • 10 Agosto 1976
    ...not subject to review, as the defendant did not stand upon it but introduced evidence in his defense. Pinkston v. State, (1975) Ind.App., 325 N.E.2d 497; Hancock v. State, (1971) 256 Ind. 697, 271 N.E.2d 731; Warren v. State, (1963) 243 Ind. 508, 188 N.E.2d The substance of the defendant's ......
  • Murphy v. State, 781S182
    • United States
    • Indiana Supreme Court of Indiana
    • 16 Septiembre 1983
    ...Error, if any, in the denial of such a motion is waived upon the introduction of evidence by the moving party. Pinkston v. State, (1975) 163 Ind.App. 633, 325 N.E.2d 497, ISSUE II Defendant contends that the trial court erred in permitting witness Kelly King to make an in-court identificati......
  • Winston v. State, 2--1173A258
    • United States
    • Indiana Court of Appeals of Indiana
    • 14 Agosto 1975
    ...on his behalf. Hence the error assigned to the denial of the TR. 41(B) motion is not waived. Compare Pinkston v. State (1975), Ind.App., 325 N.E.2d 497; Hoosier Insurance Co. v. Ogle (1971), 150 Ind.App. 590, 276 N.E.2d 3 See also Kleinrichert v. State (1973), Ind., 297 N.E.2d 822; Webb v. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT