Roberts v. State, No. 976S298

Docket NºNo. 976S298
Citation268 Ind. 348, 375 N.E.2d 215
Case DateMay 05, 1978

Page 215

375 N.E.2d 215
268 Ind. 348
David James ROBERTS, Appellant,
v.
STATE of Indiana, Appellee.
No. 976S298.
Supreme Court of Indiana.
May 5, 1978.

[268 Ind. 349]

Page 217

Tom G. Jones, Jones, Loveall & Coachys, Franklin, Palmer K. Ward, Indianapolis, for appellant.

[268 Ind. 350] Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted of two counts of first degree murder, two counts of murder in the perpetration of burglary, one count of murder in the perpetration of arson and one count of arson. He was sentenced to a term of 5 to 20 years on the arson count and to five terms of life imprisonment for the felony murder and murder convictions.

In the early morning of January 20, 1974, police and fire officials were summoned to a charred house on Princeton drive in New Whiteland, where they found the dead bodies of a young married couple and their baby daughter. A five-gallon gasoline can and a nozzle were found in the house and there was a strong odor of gasoline about the premises. A struggle had occurred but there was no indication that there had been a forced entry. The parents died from asphyxia and were dead before the fire. The child died from carbon monoxide and smoke inhalation.

The evidence most favorable to the State indicates that the decedent, William Patrick, was a salesman in the Sears Automobile Service Center on North Alabama Street in Indianapolis. On October 10, 1973, appellant brought a car to Sears for tires and exhaust work. The work was

Page 218

performed but the car was taken from the lot without the bill being paid. Patrick later identified appellant as the purported owner of the car and the person who had purchased the tires. On January 15, 1974, Patrick was deposed by appellant's attorney and implicated appellant as the thief.

The appellant's car, a 1969 or 1970 gold Buick Riveria, was observed at a New Whiteland gas station owned by William Patrick's brother between 3:00 p. m. and 5:00 p. m. on January 19, 1974. The driver purchased a dollar's worth of gasoline and asked for directions to Princeton Drive. Around 5:30 p. m. or 6:00 p. m. that same day, appellant pulled into a gas station at the corner of 16th and Illinois [268 Ind. 351] Streets in Indianapolis. He purchased gas for his car and also had a five gallon can filled. The can belonged to the station and was marked by an attendant with a yellow crayon. The can was found in the charred Patrick residence and was positively identified by two attendants as the can given to appellant. Two nearby residents testified they observed a large gold Buick on the street near the Patrick home late on January 19, and in the early morning hours of January 20. The car was gone at 4:30 a. m. when the fire sirens woke the residents.

Appellant filed a motion to dismiss the arson count on the ground that it was duplicitous and a lesser included offense under the count charging murder in the perpetration of arson. He claims it was reversible error for the trial court to refuse to dismiss the count. In Candler v. State (1977), Ind., 363 N.E.2d 1233, we upheld the decision of the trial court in refusing to instruct the jury that robbery was a lesser included offense of murder in the commission of a robbery. A logical extension of the Candler doctrine is that the felony itself may be contained in the indictment where one of the charges is murder in the commission of that felony. We see no valid reason for applying the rule urged by appellant. We hold the trial court did not err in refusing to dismiss the arson count.

However, appellant is correct in his assertion that the trial court erred in sentencing him under both the felony murder and arson convictions. The Candler opinion vacated an armed robbery sentence on the ground that the conviction thereof merged with the conviction for felony murder. The same principle applies here.

Appellant also claims that four counts of the indictment should have been dismissed because they failed to state the crimes with sufficient certainty as to inform him of the specific offenses of which he was charged. These counts charged appellant with first degree murder and murder in the commission of robbery of William [268 Ind. 352] Patrick and Elizabeth Patrick using "means and ways unknown to this grand jury." The precise language of the challenged indictment in this case was approved in Waggoner v. State (1900), 155 Ind. 341, 58 N.E. 190 and State v. Carrier (1956), 235 Ind. 456, 134 N.E.2d 688. We can perceive no substantial reason for deviating from this long-standing rule. The perpetrator of a crime oftentimes is able to cover his misdeed so that his specific means of committing it cannot be determined. In such a case we see nothing erroneous about charging a person with crimes committed using unknown methods. The trial court did not err in refusing to dismiss the charges for failing to state the crime with sufficient certainty.

Appellant further contends the indictments were insufficient as a matter of law because they failed to state he had killed a "human being." This Court has held that an indictment stating the name of the person upon whom the crime was perpetrated is sufficient to show that a human being has been injured or killed. Brooks v. State (1954), 233 Ind. 391, 120 N.E.2d 182; Porter v. State (1910), 173 Ind. 694, 91 N.E. 340.

Appellant next claims the trial court erred in imposing two sentences of life imprisonment for the murder and felony murder of William Patrick and two sentences of life imprisonment for the murder and felony murder of Elizabeth Patrick. Appellant is correct. Franks v. State (1975), 262 Ind. 649, 323 N.E.2d 221. Therefore, two of the four life sentences must be vacated.

Page 219

Appellant also complains of numerous errors in the admission of evidence at the trial. He objected variously on the grounds of the best evidence rule, hearsay, improper foundation, inaccurate photographs and prejudicial questions. However, he argues in his brief only the law on hearsay. Thus his other objections are deemed waived for failure to comply with AP. 8.3(A)(7). Williams v. State (1973), 260 Ind. 543, 297 N.E.2d 805.

[268 Ind. 353] Hearsay evidence is testimony by a witness in court relative to an extrajudicial declaration by another which is offered to prove the truth of the facts asserted by the declarant. The value of the witness' statement rests on...

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40 practice notes
  • People v. Phillips, No. 08CA2013.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 25, 2012
    ...1983); Crawford v. Garnier, 719 F.2d 1317 (7th Cir.1983); United States v. Shepherd, 739 F.2d 510, 514 (10th Cir.1984); Roberts v. State, 268 Ind. 348, 375 N.E.2d 215, 219 (1978)). [315 P.3d 161] ¶ 105 We conclude C.G.'s declaration was a command, phrased as a conditional sentence, offered ......
  • People v. Lowe, No. 82SA372
    • United States
    • Colorado Supreme Court of Colorado
    • February 28, 1983
    ...murder. Since there was only one murder, to allow both judgments to stand would amount to double jeopardy.); Roberts v. State, 268 Ind. 348, 375 N.E.2d 215 (1978) (The court reversed the defendant's convictions for two felony murders and two premeditated murders (four charges of murder) whe......
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1982
    ...with attempting to murder the victim. The trial court did not err in denying defendant's motion to dismiss. Roberts v. State, (1978) 268 Ind. 348, 375 N.E.2d 215; Madison v. State, (1955) 234 Ind. 517, 130 N.E.2d 35; Brown v. State, (1980) Ind.App., 403 N.E.2d Nonetheless, defendant's convi......
  • Mason v. Hanks, No. 95-1908
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 27, 1996
    ...only that the information was received within the officer's own knowledge is not objectionable hearsay." Roberts v. State, (1978) 268 Ind. 348, 375 N.E.2d 215, citing Ballard v. State, (1974) 262 Ind. 482, 318 N.E.2d 798. In the case at bar, the incriminating statement made by an unknown an......
  • Request a trial to view additional results
40 cases
  • People v. Phillips, No. 08CA2013.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 25, 2012
    ...1983); Crawford v. Garnier, 719 F.2d 1317 (7th Cir.1983); United States v. Shepherd, 739 F.2d 510, 514 (10th Cir.1984); Roberts v. State, 268 Ind. 348, 375 N.E.2d 215, 219 (1978)). [315 P.3d 161] ¶ 105 We conclude C.G.'s declaration was a command, phrased as a conditional sentence, offered ......
  • People v. Lowe, No. 82SA372
    • United States
    • Colorado Supreme Court of Colorado
    • February 28, 1983
    ...murder. Since there was only one murder, to allow both judgments to stand would amount to double jeopardy.); Roberts v. State, 268 Ind. 348, 375 N.E.2d 215 (1978) (The court reversed the defendant's convictions for two felony murders and two premeditated murders (four charges of murder) whe......
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1982
    ...with attempting to murder the victim. The trial court did not err in denying defendant's motion to dismiss. Roberts v. State, (1978) 268 Ind. 348, 375 N.E.2d 215; Madison v. State, (1955) 234 Ind. 517, 130 N.E.2d 35; Brown v. State, (1980) Ind.App., 403 N.E.2d Nonetheless, defendant's convi......
  • Mason v. Hanks, No. 95-1908
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 27, 1996
    ...only that the information was received within the officer's own knowledge is not objectionable hearsay." Roberts v. State, (1978) 268 Ind. 348, 375 N.E.2d 215, citing Ballard v. State, (1974) 262 Ind. 482, 318 N.E.2d 798. In the case at bar, the incriminating statement made by an unknown an......
  • Request a trial to view additional results

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