Robbins v. State

• Decision Date: 30 October 1968
• Docket Number: No. 1267,1267
• Citation: 241 N.E.2d 148,251 Ind. 313
• Parties: James ROBBINS, Appellant, v. STATE of Indiana, Appellee. S 136.
• Court: Indiana Supreme Court

Page 148

241 N.E.2d 148

251 Ind. 313

James ROBBINS, Appellant, v. STATE of Indiana, Appellee.

No. 1267 S 136.

Supreme Court of Indiana.

Oct. 30, 1968.

Frederick J. Graf, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Richard V. Bennett, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

Appellant was charged by indictment in three separate counts with kidnapping, statutory rape, and commission of a felony while armed with a deadly weapon. The relevant Indiana statutes provide as follows:

Ind.Ann.Stat. § 10--2901 (1956 Repl.)

'Kidnapping.--Whoever kidnaps, or forcibly or fraudulently carries off or decoys from any place within this state, or arrests or imprisons any person, with the intention of having such person carried (a) way from any place within this state, unless it be in pursuance of the laws of this state or of the United States, is guilty of kidnapping, and, on conviction, shall be imprisoned in the state prison during life.'

Ind.Ann.Stat. § 10--4201 (1956 Repl.)

'Rape--Penality.--Whoever has carnal knowledge of a women forcibly against her will, or of a female child under the age of sixteen (16) years; * * * is guilty of rape, and on conviction shall be imprisoned not less than two (2) years nor more than twenty-one (21) years * * *'

Ind.Ann.Stat. § 10--479 (1968 Supp.).

'Commission of or attempt to commit crime while armed with deadly weapon.--Any person who being over sixteen (16) years of age, commits or attempts to commit either the crime of rape, robbery, bank robbery, or theft while armed with a pistol, revolver, rifle, shotgun, machine gun or any other firearm or any dangerous or deadly weapon, * * * shall be guilty of a separate felony in addition to the crimes above named and upon conviction shall be imprisoned for a determinate period of not less than ten (10) years nor more than twenty (20) years, to be fixed by the court: Provided, That such court shall have the right to provide in the judgment that such term of imprisonment shall not run concurrently with any imprisonment that may be adjudged for either of the crimes first above enumerated but that such term of imprisonment shall be served beginning at the expiration of the imprisonment adjudged for either of said first named crimes.'

The jury found appellant guilty on all three counts. The trial court granted appellant's motion for an arrest of judgment on Count Two (statutory rape). Appellant was sentenced to the Indiana State Prison for life on Count One (kidnapping) and to the Indiana State Reformatory for a determinate period of fifteen years on Count Three (commission of a felony while armed with a deadly weapon).

The evidence most favorable to the state may be summarized as follows. At about 1:00 A.M., Christmas morning, 1966, the prosecutrix, an unmarried fifteen-year-old female, was alone, operating an automobile on route to a friend's home to pick up a purse which she had unintentionally left there earlier in the evening. The prosecutrix stopped for a traffic signal where a man, whom she identified at the trial as the appellant, drove alongside in another car and attempted to engage her in conversation. As she proceeded from the intersection, this man followed her and eventually ran her car off the road. He pointed a pistol at the prosecutrix, entered her car, and drove it to a nearby alley. There according to the prosecutrix, he ripped her clothing and threatened to shoot her if she tried to run. He then restarted the car and drove to the west side of Indianapolis. While driving the car, he pulled her hair, forced her to smoke a cigarette, threatened to 'mess up' her face and struck her several times with the pistol. After stopping the car behind a factory, he again struck the prosecutrix with the pistol and ordered her to disrobe. He then raped the prosecutrix twice, each time hitting her and stating that he wished to see her suffer. When she refused to satisfy his further sexual desires by fellatio, he shot her four different times, laughing at her pleas for mercy. Then, apparently believing that he had killed his victim, he reentered the car and left the scene of his crime.

The prosecutrix was able to walk across a field and obtained help at a nearby home. At the hospital the prosecutrix gave the police a description of the car in which she had originally seen her assailant. The car was located near the place from which the prosecutrix had been originally abducted. This car was found to have been stolen. A DeMolay membership card was found in the front seat of the car. The card had been issued to one Jan Buris but had been transferred and was traced through several persons to the appellant. Police visited appellant's residence and found the car which had originally been driven by the prosecutrix parked nearby.

Four days after the crimes had been committed, the appellant was brought to the hospital where the prosecutrix positively identified him as her assailant. During interrogation, after having been advised of his constitutional rights and having signed a waiver thereto, the appellant admitted shooting the prosecutrix.

Appellant contends that the trial court committed reversible error when it permitted the prosecution to introduce a 'mug shot' of the appellant, 'certain other inflamatory (sic) pictures' and a piece of 'bone-like substance' into evidence at the trial. Although appellant in his brief states that he objected to introduction of the 'bone-like substance' into evidence, the record indicates that he expressly did not do so:

'We won't object to the cigarette butts and we won't object to that piece there, but we will object to the spent bullet because the lieutenant doesn't know who found it actually, he didn't at least.' (emphasis added).

Appellant admits that he failed to object to the introduction of the other evidence here in question during the trial but requests this court to consider 'the personal trial danger' to him of 'protesting too often.'

This court can not consider appellant's subjective motives for not objecting to this evidence; the propriety of the appellant's trial strategy is not an issue on this appeal. It is well settled that unless a timely objection is made to the admissibility of evidence in the trial court, the question is not reserved and will not be considered on appeal. White v. State (1955), 234 Ind. 193, 125 N.E.2d 442; Crawford v. Anderson (1891), 129 Ind. 117, 28 N.E. 314.

Count I of the indictment, charging the appellant with the crime of kidnapping, reads in pertinent part:

'That James Robbins on or about the 25th day of December, A.D. 1966, at and in the County of Marion and in the State of Indiana, did then and there feloniously and forcibly carry away and kidnap the following person, namely: (the prosecutrix), from a place within the City of Indianapolis, in the County of Marion and State of Indiana, to wit: the 2500 block of North Sharon Avenue in the said county and state * * *'

Appellant contends that there was a fatal variance between the indictment and the evidence in that the testimony of the victim shows that, while she was en route to the 2500 block of North Sharon Avenue, she had not arrived at that address when her car was forced off the street by her assailant:

'A. I turned down Medford because I had missed Sharon and I didn't know if he was following me or not.

Q. And was there a car following you?

A. Yes, he was.

Q. All right.

A. And I was just going to walk into this Robert Brown's house like I lived there.

Q. Now where did Robert Brown live in what hundred block?

A. Twenty-five hundred (2500) block of Sharon. Well, I turned to go back on Sharon, I turned east off of Medford and when I did, he come in front of me and run me off the road.'

The state maintains that this variance between the indictment and the evidence was not fatal in that appellant was not surprised, misled nor prevented from preparing his defense. Madison v. State (1955), 234 Ind. 517, 130 N.E.2d 35.

Ind. Ann. Stat. § 9--1127 (1956 Repl.) provides:

'No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed, nor shall the trial, judgment or other proceeding be stayed, arrested or in any manner affected for any of the following defects:

* * * Second. For the want of an allegation of the time or place of any material fact, when the venue and time have once been stated in the indictment or affidavit.

* * * Tenth. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.'

In State v. Carrier (1955), 235 Ind. 456, 134 N.E.2d 688, 59 A.L.R.2d 896, this court held that an indictment for murder was sufficient as against a motion to quash even though the indictment did not allege the place of the death of the person claimed to have been murdered. The court stated:

'It has never been necessary to allege the exact place in the county where the fatal blow or death occurred. The words 'at and in said county,' has always been held to be a sufficient allegation in charging an offense. Peats v. State, 1938, 213 Ind. 560, 12 N.E.2d 270; Hawkins v. State, 1894, 136 Ind. 630, 36 N.E. 419; Coger v. State, 1925, 196 Ind. 332, 147 N.E. 624; Acts 1905, Ch. 169, § 191, P. 584, being § 9--1126, Burns' 1942 Replacement.' 235 Ind. at 460, 134 N.E.2d at 689.

In Madison v. State, supra, this court stated:

'(I)t seems to be well settled in this state and most jurisdictions that the accepted rule in determining the materiality of a variance in a criminal proceeding is that it must be of such substantial character as to mislead the accused in preparing and maintaining his defense or the variance of such a degree as is likely to place him in second jeopardy for the same offense.' 234 Ind. at 547, 130 N.E.2d at 48. See also, 32 Ind.L.J. 258, 267--273.

The indictment in plain and concise language charges that the appellant did 'feloniously and forcibly carry away and kidnap * * * ...