Pope v. State

• Decision Date: 01 April 1949
• Docket Number: 28477,28478.
• Citation: 84 N.E.2d 887,227 Ind. 197
• Parties: POPE v. STATE. LEWIS v. STATE.
• Court: Indiana Supreme Court

84 N.E.2d 887

227 Ind. 197

POPE v. STATE.

LEWIS v. STATE.

Nos. 28477, 28478.

Supreme Court of Indiana

April 1, 1949

Appeal from Union Circuit Court; Kenneth E. Cope Judge.

No 28477:

James B. Davison and William E. McFeely, both of Richmond, and Moran & Abromson, of Portland, for appellant.

Cleon H. Foust, Atty. Gen., Frank E. Coughlin, First Deputy Atty Gen., J. Emmett McManamon, Atty. Gen. as of Jan. 1, 1949, and Merl M. Wall, Deputy Atty. Gen., for appellee.

No 28478:

Roberts & Shepard, of Liberty, and Moran & Abromson, of Portland, for appellant.

JASPER Judge.

The appellants were charged jointly by affidavit with the alleged offense of automobile banditry under § §0-4710, Burns' 1942 Replacement.

They were tried jointly and were convicted. Judgment and sentence of imprisonment followed.

On appeal to this court they have assigned as error the overruling of their motions in arrest of judgment, and the overruling of their separate motions for a new trial.

That part of the affidavit material to the question presented by the motion in arrest of judgment charged the appellants as follows: 'John T. Petro being duly sworn upon his oath says that Sherman Lewis and William Pope on or about the 2nd day of October, 1947, at said County of Union and State of Indiana, did then and there unlawfully, and feloniously rob, take, steal and carry away of the goods and chattels of the Green and White Filling and Service Station, in the town of Liberty, Union County, Indiana, one safe and contents, then and there, belonging to said Green and White Service Station, by violence, and said Sherman Lewis and William Pope, at the said time and place, had on and near the premises whereon said unlawful act was so committed by them an automobile by the use of which they escaped and intended and attempted to escape, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Indiana.'

The statute defining automobile banditry is as follows: '10-4710 [2548]. Automobile banditry--Use of conveyance in escape or attempted escape.--If any person or persons shall commit or attempt to commit a felony, having at the time on or near the premises where such felony is attempted or committed, an automobile, motorcycle, airplane, or other self-moving conveyance, by the use of which he or they escape, attempt to escape or intend to escape, or having attempted or committed such felony, he or they seize an automobile, motorcycle, airplane, or other self-moving conveyance, by the use of which he or they escape or attempt to escape, he, they and each of them shall be guilty of automobile banditry, and, upon conviction thereof, shall be imprisoned in the state prison for any determinate period not less than ten (10) years nor more than twenty-five (25) years. [Acts 1929, ch. 54, § 3, p. 136.]'

The appellants' motion in arrest of judgment was on the statutory ground that the facts stated in the affidavit did not constitute a public offense under the laws of the State of Indiana. Counsel for appellants urge that the affidavit did not state a public offense because it failed to allege any value of the goods and chattels alleged to have been taken, and that the affidavit failed to show that said goods and chattels were taken from any person or persons, as required by law.

It is evident from the affidavit filed herein that the State was attempting to allege the felony of larceny, although the word 'rob' is mentioned therein, and also that the crime was committed 'by violence.' Certainly this could not be considered as an attempt to allege the crime of robbery. The prosecution attempted to prove larceny, but failed to allege any fact or...