Seats v. State

• Decision Date: 30 July 1970
• Docket Number: No. 1168S185,1168S185
• Citation: 260 N.E.2d 796,254 Ind. 457
• Parties: Martin H. SEATS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 796

260 N.E.2d 796

254 Ind. 457

Martin H. SEATS, Appellant, v. STATE of Indiana, Appellee.

No. 1168S185.

Supreme Court of Indiana.

July 30, 1970.

[254 Ind. 458] Gil I. Berry, Jr., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., of Indiana, Curtis C. Plopper, Deputy Atty. Gen., Indianapolis, for appellee.

JACKSON, Judge.

Appellant was charged by affidavit, signed by Donald Okey and filed April 25, 1968, with the crime of robbery by putting in fear. The affidavit omitting formal parts, signatures, and jurat, reads in pertinent part as follows:

'That HARRIETT MARIE CURETON, CAROL HENDERSON, MARTIN H. SEATS, and JAMES W. WILLIAMS, on or about the 22nd day of April, 1968, at and in the County of Marion in the State of Indiana, did then and there unlawfully, feloniously, forcibly by violence and putting GARY STAHL in fear, take from the person and possession of the said GARY STAHL, money then and there of the value of ONE HUNDRED SEVEN DOLLARS and EIGHTY EIGHT CENTS ($107.88) in lawful money, which property the said GARY STAHL, then and there lawfully held in his possession and was then and there the property of CENTURY OIL COMPANY, INC., a corporation, then and there being contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.'

Appellant waived arraignment on the above charge and entered a plea of not guilty. On August 5. 1968, appellant waived trial by jury and the cause was submitted to the court for trial. The court found appellant guilty and, thereupon, ordered a pre-sentence investigation made by the probation department for said county. Sentencing was set for August 23, 1968, and on said date the court sentenced appellant to the Indiana Reformatory for a period of not less than ten nor more than 25 years, disfranchised him, and rendered him incapable of holding any office of trust or profit for a period of ten years.

A motion for new trial was filed by appellant August 23, 1968, such motion, ommitting formal parts and signatures, reads in pertinent part as follows:

'Comes now the defendant, Martin H. Seats, by counsel and moves the Court for a new trial in said cause for the following:

1. That the finding of the Court is not sustained by sufficient evidence.

2. That the finding of the Court is contrary to law.

WHEREFORE, defendant, prays by way of the aforementioned grounds that the Court grant him a new trial and for all other relief just and proper in the premises.

MEMORANDUM

Defendant respectfully submits that there was insufficient evidence upon which to base a finding of guilty.'

Thereafter, appellant's Motion For New Trial was overruled. His sole Assignment of Error on appeal is that: '1. The Court erred in overruling Appellant's motion for new trial.'

From the evidence adduced at trial it appears that at approximately 4:00 a.m. on the morning of April 22, 1968, the appellant entered the filling station where one Gary Stahl was employed as an attendant and started a conversation concerning a particular type of beverage, continuing the same for approximately five (5) minutes. Appellant then turned from the attendant and walked out of the station. Immediately upon the appellant turning and walking away from the attendant, another man approached the said Gary Stahl from the rear with a gun and took from him $107.88. At. 4:08 a.m. on the same date appellant was arrested by Irvin Wuttke, a Marion County Deputy Sheriff, who stopped the red 1965 Pontiac automobile in which appellant was riding, on information and belief that he had committed a felony. Gary Stahl was brought to the scene of the arrest by the Sheriff's Department and there identified the appellant as being at the service station earlier. At the same time Stahl also identified the hold-up man who was then in the presence of the appellant. Appellant requested that he have the assistance of counsel at the scene of his arrest and subsequent 'show-up' but none was provided prior to the identification by Stahl.

On appeal appellant argues that there was insufficient evidence of probative value introduced below upon which his conviction could be sustained, and that he was denied his constitutional right to the effective assistance of counsel at the time the complaining witness was brought to the scene of appellant's arrest and there identified him in the presence of the 'hold-up man.' The appellee claims that the issues raised by this latter argument are not properly before this Court. It contends that since the appellant failed to: (a) properly object during the trial to the testimony then being taken from the arresting officers, (b) move to strike their testimony from the record, and (c) mention this ground as assigned error in his motion for new trial, he cannot now present the question on appeal. Appellee's point is well taken. In Fletcher v. State (1961), 241 Ind. 409, 172 N.E.2d 853, this Court stated:

'Further, the record reveals that no objection was made prior to the objectionable testimony, and no motion to strike was made. Therefore, no error is reserved as to the admission of the testimony. Beeler v. State (1951), 230 Ind. 444, 104 N.E.2d 744.'

Likewise, in Woods v. State (1967), 248 Ind. 256, 226 N.E.2d 326 this Court held that:

'In order to present upon an appeal the question of the introduction of incompetent evidence at the trial, the alleged error * * * must be presented to the trial court by motion for new trial. Poehler v. State (1924), 194 Ind. 207, 142 N.E. 140.'

Therefore, since appellant failed to object during the course of the trial to the admission of the testimony given by the arresting officers, failed to move to strike said testimony, and failed to include in his motion for new trial or the attached memorandum the allegation that the trial court erred in admitting certain evidence arrived at in violation of his constitutional guarantees, this specification of error cannot now be considered by this Court.

Consequently, we are left with appellant's initial argument that the evidence introduced before the trial court is insufficient to sustain his conviction for the crime as charged and that, therefore, said conviction should be reversed. Although the affidavit charged appellant as a principal with the crime of robbery, it was the theory of the prosecution that he was an accessory under Burns' Ann.Stat. § 9--102 which provides:

'Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command, or otherwise procure a felony to be committed may be charged by indictment or affidavit, tried and convicted in the same manner as if he were a principal * * * and upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.'

Therefore, under its theory of the case, it was incumbent upon the State to prove that the appellant was actually aiding or abetting in the commission of the crime in question.

This Court has stated on numerous occasions that whenever the sufficiency of the evidence is raised as an issue on appeal it will consider only that evidence which is most favorable to the State together with all logical and reasonable inferences to be drawn therefrom. McGill v. State (1969), Ind., 247 N.E.2d 514; Croney v. State (1969), Ind., 247 N.E.2d 501; Wagner v. State (1963), 243 Ind. 570, 188 N.E.2d 914. And that a conviction will be sustained if there is any evidence of the facts essential to support the judgment. Majko v. State (1965), 246 Ind. 506, 207 N.E.2d 212.

Notwithstanding the principles laid down by the above cited cases, this Court has set forth the standard by which we review the evidence to determine the sufficiency thereof when challenged on appeal.

'In considering the...