Sargeant v. State, 1069S260

Citation263 N.E.2d 525,23 Ind.Dec. 444,255 Ind. 252
Decision Date18 November 1970
Docket NumberNo. 1069S260,1069S260
PartiesRichard G. SARGEANT, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Frank E. Spencer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen. of Ind., Robert F. Hassett, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal from the Marion Criminal Court, Division I. The appellant was charged by affidavit with the offense of Robbery and was found guilty as charged by a jury.

Evidence introduced at the trial reveals that Frank Babrick, store manager of a Marsh Super Market at 1105 North Arlington, Indianapolis, Indiana, was confronted at work by a man on January 12, 1968, who passed him a note informing him that this was a holdup. Babrick, noticing that the man had a shoulder holster with a revolver in it, proceeded to give the robber the money, which amounted to $1,011.87.

The robbery occurred at approximately 7:15 p.m. At about 11:30 p.m. Babrick told police he was positive the man who had robbed the grocery was the man they had apprehended.

Appellant objects to certain matters occurring on cross examination. First, Frank Babrick was questioned as follows:

'Q. Now, isn't it a fact that you said this or this in substance, he looks something like him but I am not sure, didn't you say that?

'A. It's been a year and a half ago.

'Q. Well, I know that but you are so positive. What I am getting at is to refresh your recollection did you say this or this in substance, it looks something like him but I am not sure, did you say that? Yes or no?

'A. Yes.

'Q. Did you say that?

'A. Yes.

'Q. So you weren't positive, were you, were you?

'A. Not exactly at the very minute I got there, No.

'Q. Well you never did change the tenor of your conversation that night with reference to identification, did you?

'A. Yes. I gave a positive identification before I left. I gave a positive identification at the police station the next day.

'A. I am talking about the night in question, if you will restrict yourself to that. When you first got there, when you first were shown the defendant, he was first shown in the paddy wagon, your first words were this or this in substance * *

MR. TIPTON: Objection. This is repetitious.

MR. ERBECKER: Now, Your Honor, this is cross examination.

MR. TIPTON: Well, he is asking * * *

THE COURT: This is cross examination but, of course, I don't believe that the question has been repeated or has been completed I should say. However, repetitious questions are not permitted on cross. All right, go ahead.

'Q. When you first got to the paddy wagon and first saw the defendant, you said this or this in substance didn't you, this looks like the man but I am not sure, you said that, didn't you?

'A. Right.

MR. TIPTON: Objection, Your Honor. We * * *

'Q. All right, then when * * *

MR. TIPTON: * * * move to strike the answer and object on the grounds it is repetitious and have the jury * * *

THE COURT: Yes, I believe that just not in substance but word for word that same question was asked and answered. For that reason the motion to strike is sustained, the answer is ordered stricken and the jury will disregard it.'

Appellant argues his second question, the answer to which the State moved to strike, was not repetitious because it emphasized the time element. However, before asking the second question, it had already been established that the witness was not sure of identifying appellant when he first saw him. The time element was likewise brought out when the witness was asked:

'Q. So you weren't positive, were you, were you?

'A. Not exactly at the very minute I got there, no.'

No error occurred when the court sustained the State's objection because of repetition. Appellant had already established through questioning the witness that positive identification was not immediate. As the answer excluded added nothing new, there was no prejudicial harm.

Appellant contends the court committed reversible error by sustaining the State's 'objection to what the custom is.' Witness for the State Ronald Young had been asked on cross examination: 'Isn't it the custom to have a lineup in a case of this type, robbery?'

In the case before us, there was testimony prior to the above question to the effect that no lineup was conducted. Furthermore, whether the custom is to have or not to have a lineup has no relevancy on the issue of appellant's guilt or innocence. Thus, there was no abuse of the court's discretion as to this matter.

Frank Babrick testified that the robber of the grocery was wearing a shoulder holster with a pistol in it. Appellant objected when a shoulder holster was entered into evidence on the basis that it was not connected with the appellant. However, the evidence connects appellant with the shoulder holster. Officer Young testified that he followed footprints from a car in a field and at a distance of some 200 or 300 yards from said car he found a money bag, brown felt hat, and an empty shoulder holster. Furthermore, he followed the footprints from that point to about the 1300 or 1400 block of Arlington, where he soon found the appellant. Appellant admitted he had been in the car, and then left the car, walking through the field to Arlington. Anyway, the appellant has not shown how admission of the holster into evidence was prejudicial.

Appellant next asserts that the court erred in refusing to give his tendered Instruction Number 3:

'While the prosecution must prove the guilt of the defendants beyond a reasonable doubt, there is no such burden laid upon the defendants to prove their innocence, and it is sufficient for them that a reasonable doubt has been raised as to his guilt by a consideration of all of the evidence, including alibi or any other evidence introduced; the defendants...

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  • Decker v. State, 2-877-A-331
    • United States
    • Indiana Appellate Court
    • March 5, 1979
    ... ... Vacendak v. State (1976), 264 Ind. 101, 340 N.E.2d 352; Sargeant v. State (1970), 255 Ind. 252, 263 N.E.2d 525." ...         Therefore, based on the foregoing authority we find the trial court properly ... ...
  • Blackburn v. State
    • United States
    • Indiana Supreme Court
    • January 24, 1973
    ...It is not error to refuse to give requested instructions which are amply and fairly covered by other instructions given. Sargeant v. State (1970), Ind., 263 N.E.2d 525, rehearing denied; Malone v. State (1911), 176 Ind. 338, 96 N.E. Defendant's tendered instruction #15 dealt with the necess......
  • Montes v. State
    • United States
    • Indiana Supreme Court
    • August 19, 1975
    ...this issue is not presented to us for decision in this appeal. Hardin v. State (1970), 254 Ind. 56, 257 N.E.2d 671; Sargeant v. State (1970), 255 Ind. 252, 263 N.E.2d 525. While admitting that the advisement of rights given each appellant met the requirements of Miranda v. Arizona, supra, a......
  • McNall v. Farmers Ins. Group
    • United States
    • Indiana Appellate Court
    • August 1, 1979
    ...given. Woodard v. State (1977), Ind., 366 N.E.2d 1160; Martin v. State (1973), 260 Ind. 490, 296 N.E.2d 793; Sargeant v. State (1970), 255 Ind. 252, 263 N.E.2d 525. Reversed and remanded for further proceedings consistent with the views expressed HOFFMAN and STATON, JJ., concur. 1 Farmers I......
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