Resnover v. State, No. 576S161

Docket NºNo. 576S161
Citation267 Ind. 597, 372 N.E.2d 457
Case DateFebruary 13, 1978
CourtSupreme Court of Indiana

Page 457

372 N.E.2d 457
267 Ind. 597
Daniel RESNOVER, James Edward Shropshire, et al., Appellants
(Defendants below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 576S161.
Supreme Court of Indiana.
Feb. 13, 1978.

[267 Ind. 598]

Page 458

David W. Foley, Mullin Foley & Gilroy, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, James Edward Shropshire, was convicted of conspiracy to commit a felony, to-wit: aiding in the escape of a prisoner and of commission of a crime while armed with a deadly weapon, to-wit: jail breaking. He was sentenced to serve two to fourteen years' imprisonment on the conspiracy count and seventeen years on the armed felony count. The defendant, Daniel Resnover, was convicted of conspiracy to commit a felony, to-wit: aiding in the escape of a prisoner. He was sentenced to serve two to fourteen years' imprisonment. These convictions were the result of a joint trial and the defendants have jointly appealed. Since we have jurisdiction over Shropshire's appeal, we also have jurisdiction over Resnover's appeal; the facts surrounding the [267 Ind. 599] case of conspiracy to aid Shropshire are in the record before us and they have jointly appealed. On appeal they raise the following issues:

1. Whether the court's instructions on reasonable doubt and on the imposition of penalties were erroneous and whether requested instructions on parole were improperly refused;

2. Whether a letter from Shropshire to his wife and testimony of a conversation between them should have been excluded as a privileged communication;

3. Whether challenges to jury members were properly refused;

4. Whether Resnover should have been granted a separate trial;

5. Whether the trial court had jurisdiction; and

6. Whether there was sufficient evidence to support the verdict.

The evidence revealed that Edward Shropshire was a prisoner at the Indiana Reformatory and that with his wife he planned to escape from custody, with the aid of his wife and Resnover, when he was

Page 459

transferred to Robert Long Hospital. When he was transferred for an operation, his wife smuggled guns into the hospital and while armed they made their escape. Resnover agreed to help and participated in the planning of the escape. On the day of the escape, he drove the car, aiding the accomplishment of Shropshire's escape.

I.

The trial court gave its own standard instructions on the concept of reasonable doubt and on the assessment of penalties by the jury in cases involving determinate sentences. Both of these instructions have been previously approved by this Court against arguments like those raised by the defendants. [267 Ind. 600] Brown v. State, (1977) Ind., 360 N.E.2d 830; Holt v. State, (1977) Ind., 365 N.E.2d 1209; Harris v. State, (1977) Ind., 366 N.E.2d 186.

The defendants requested the following two instructions:

" 'Parole' commonly refers to a prisoner who has been released from actual custody, but who is still in legal custody and constructively a prisoner of the State."

"A prisoner, on parole, who escapes, cannot be guilty of violating the Jail Breaking Statute."

These instructions were refused by the trial court. The following instruction was given at the defendants' request:

"The burden is upon the State of Indiana to prove beyond a reasonable doubt that defendant James Edward Shropshire was not on parole at Robert Long Hospital."

The only evidence presented concerning parole was through the use of the words "temporary parole" on the gate release authorizing the transfer of Shropshire to Robert Long Hospital from the Indiana Reformatory, and the use of those words by one witness in characterizing the release of the defendant to Robert Long. No evidence of an actual parole that is cognizable in the statutory law was presented such as to justify an instruction on parole.

Instructions are properly given where they relate to the issues in the case and are supported by the evidence. Strickland v. State, (1977) Ind., 359 N.E.2d 244. Here, the trial court did give an instruction that required the state to prove Shropshire was not on parole. Another instruction defined the offense of jail breaking. It is not error to refuse an instruction the substance of which is covered by another instruction. Hackett v. State, (1977) Ind., 360 N.E.2d 1000.

[267 Ind. 601] II.

...

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15 practice notes
  • Brown v. State, No. 1-1178A337
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 Abril 1980
    ...against Brown under Patton, supra. Under the circumstances, Byrne's testimony is not considered hearsay. See Resnover v. State, (1978) 267 Ind. 597, 372 N.E.2d Brown also complains of the admission, over his objection, of testimony referring to acts or statements of co-conspirators either p......
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 Marzo 1979
    ...as their substance was covered by the instructions given. Toliver v. State, supra, 372 N.E.2d 452; Resnover v. State (1978), Ind., 372 N.E.2d 457, [179 IND.APP. 486] ISSUE SIX: Good time instruction. The Defendant claims that the trial court erred in giving an instruction concerning possibl......
  • Shropshire v. Duckworth, No. S84-114.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 3 Febrero 1987
    ...legal history regarding this plaintiff see Shropshire v. State, 501 N.E.2d 445 (Ind.1986), and Resnover, Shropshire et al. v. State, 267 Ind. 597, 372 N.E.2d 457 (1978). The plaintiff was transferred to the Indiana State Prison from the Indiana 654 F. Supp. 373 Reformatory about February 9,......
  • Williams v. State, No. 1280S443
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Enero 1982
    ...information gained by reason of the marital relationship. Teague v. State, (1978) 269 Ind. 103, 379 N.E.2d 418; Resnover v. State, (1978) 267 Ind. 597, 372 N.E.2d 457. Here, the telephone call was initiated by the victim, Hubbard. The communication was intended Page 769 for Hubbard and was ......
  • Request a trial to view additional results
15 cases
  • Brown v. State, No. 1-1178A337
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 Abril 1980
    ...against Brown under Patton, supra. Under the circumstances, Byrne's testimony is not considered hearsay. See Resnover v. State, (1978) 267 Ind. 597, 372 N.E.2d Brown also complains of the admission, over his objection, of testimony referring to acts or statements of co-conspirators either p......
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 Marzo 1979
    ...as their substance was covered by the instructions given. Toliver v. State, supra, 372 N.E.2d 452; Resnover v. State (1978), Ind., 372 N.E.2d 457, [179 IND.APP. 486] ISSUE SIX: Good time instruction. The Defendant claims that the trial court erred in giving an instruction concerning possibl......
  • Shropshire v. Duckworth, No. S84-114.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 3 Febrero 1987
    ...legal history regarding this plaintiff see Shropshire v. State, 501 N.E.2d 445 (Ind.1986), and Resnover, Shropshire et al. v. State, 267 Ind. 597, 372 N.E.2d 457 (1978). The plaintiff was transferred to the Indiana State Prison from the Indiana 654 F. Supp. 373 Reformatory about February 9,......
  • Williams v. State, No. 1280S443
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Enero 1982
    ...information gained by reason of the marital relationship. Teague v. State, (1978) 269 Ind. 103, 379 N.E.2d 418; Resnover v. State, (1978) 267 Ind. 597, 372 N.E.2d 457. Here, the telephone call was initiated by the victim, Hubbard. The communication was intended Page 769 for Hubbard and was ......
  • Request a trial to view additional results

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