Rexroat v. State

Decision Date15 October 1964
Docket NumberNo. 30418,30418
Citation245 Ind. 688,201 N.E.2d 558
PartiesOren Clay REXROAT, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

William C. Erbecker, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., David S. Wedding, Deputy Atty. Gen., for appellees.

LANDIS, Justice.

Appellant was charged with first degree burglary, auto banditry and disorderly conduct and after a jury trial was convicted of entering to commit a felony, auto banditry and disorderly conduct. He was sentenced for a term of one to five years for auto banditry and was sentenced to 60 days imprisonment and fined $100.00 for disorderly conduct. Sentence was not imposed for the conviction of entering to commit a felony.

Appellant first claims error upon the alleged misconduct of the deputy prosecuting attorney in saying prior to the trial in the presence of prospective jurors:

'* * * Rexroat wants to cause as much trouble as possible for the State and for the Court, and we resist any continuance.'

However, it does not appear that appellant or his counsel made objection at the time to the deputy prosecutor's remarks. It is well settled that a party complaining of error must object thereto and also request the court for action that will remedy the alleged error after it has occurred. Dull v. State (1962), 242 Ind. 633, 638, 180 N.E.2d 523, 525. Here it solely appears a co-defendant's attorney asked the court to admonish the jurors and the court thereupon directed them not to let any remarks influence them in any way. It thus appears the court here completely granted the counsel's request as to admonishment and the court's ruling is therefore not subject to attack on appeal. There is further no motion to discharge the jury appearing in the record, although rules of procedure require an injured party, if he thinks misconduct is of such a character that the damage cannot be repaired by any action of the court, to move to discharge the jury or take such other steps as he may think will secure to him a fair trial. If he fails to do this, and permits the case to proceed to final determination, he must be deemed to have waived all questions arising out of such alleged misconduct. Coleman v. State (1887), 111 Ind. 563, 567, 13 N.E. 100, 102; Henning v. State (1886), 106 Ind. 386, 392, 6 N.E. 803, 807.

Appellant has next complained of the alleged insufficiency of the evidence to sustain the verdicts of the jury.

The evidence most favorable to the State is as follows: Witness Clifton Sailor, who lived across from the burglarized Williams home, noticed at about 8:00 p. m. on September 15, 1961, a car containing three men parked east of the entrance to his driveway. After a few minutes two of the men got out of the car and went over to the Williams house. The other man remained in the car, turned it around, and parked it in front of the Williams home. The three occupants of the car were identified as appellant, one Atkinson and one Hockersmith. The witness further stated he saw the two men inside the house getting things out of drawers, which they later carried out to their car. He observed them about seven minutes before the police arrived. After the police arrived and had told the men to put their hands on top of the car, he observed that appellant and the other two men became boisterous and disrespectful to the officers.

Witness Ruth Sailor, the wife of the previous witness, corroborated her husband's testimony by saying that two men went into Williams' house while the third remained in the car with the motor running. The men inside the house started ransacking the same and hurriedly putting things in a sheet or bedspread and took them out to the car. She further testified they were running up and down the hall and into the bedrooms.

Clyde Williams, owner of the burglarized house, stated that when he left the house, the doors were closed, and that he didn't know any of the three men and never gave them permission to enter his home.

Robert Stierwalt, Jr., a police officer, testified that when he arrived on the scene, two men were carrying out a piece of furniture from the...

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14 cases
  • Bennett v. State
    • United States
    • Indiana Appellate Court
    • December 26, 1973
    ...N.E.2d 722; Micks v. State (1967), 249 Ind. 278, 230 N.E.2d 298; Moore v. State (1972), Ind.Ct.App., 290 N.E.2d 472; Rexroat v. State (1964), 245 Ind. 688, 201 N.E.2d 558. See also, Dull v. State (1962), 242 Ind. 633, 180 N.E.2d 523; Harrison v. State (1972), Ind., 281 N.E.2d 98; Cooper v. ......
  • Reid v. State
    • United States
    • Indiana Appellate Court
    • November 17, 1999
    ...defendant must move to discharge the jury or take such other steps as he may think will secure him a fair trial. Rexroat v. State, 245 Ind. 688, 690, 201 N.E.2d 558, 559 (1964). If the defendant fails to take any steps whatever and allows the case to proceed to final determination, then he ......
  • Moore v. State
    • United States
    • Indiana Appellate Court
    • December 14, 1972
    ...are committed by the Court as when erroneous and improper questions are propounded by opposing counsel.' In Rexroat v. State (1964), 245 Ind. 688, 690, 201 N.E.2d 558, 559 our Supreme Court held that: '. . . (I)f . . . (the Defendant) thinks misconduct is of such a character that the damage......
  • Burgett v. State
    • United States
    • Indiana Appellate Court
    • August 1, 1974
    ...rule requiring an objection is not diluted by such a contention. Brown v. State (1970), 255 Ind. 47, 262 N.E.2d 515; Rexroat v. State (1964), 245 Ind. 688, 201 N.E.2d 558; Hauk v. State (1974), Ind.App., 312 N.E.2d 92; Coakley v. State (1972), Ind.App., 283 N.E.2d 392. While the Prosecutor'......
  • Request a trial to view additional results

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