Shelton v. State

Citation290 N.E.2d 47,259 Ind. 559
Decision Date14 December 1972
Docket NumberNo. 1071S302,1071S302
PartiesDannie Wayne SHELTON, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Stephen C. Haas, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., A. Frank Gleaves III, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

This is an appeal by Dannie Wayne Shelton, appellant (defendant below) from a conviction in the Vanderburgh Circuit Court for conspiracy to commit a felony--theft. The defendant was charged by affidavit on March 15, 1971. He was tried by jury which returned a verdict of guilty on May 27, 1971. A motion to correct errors was filed and overruled, resulting in the present appeal. The case was appealed directly to this Court because it was a criminal appeal filed prior to January 1, 1972, the effective date of the new judicial article.

The appellant presents four allegations of error for this Court's consideration. They are as follows:

(1) The trial court erred in overruling the defendant's motion to strike the State's answer to defendant's notice of intention to prove alibi;

(2) The trial court erred in overruling the defendant's objection to evidence of an alleged conspiracy prior to the date shown in the affidavit;

(3) There was insufficient evidence to support the defendant's conviction;

(4) The trial court erred in overruling the defendant's motion to quash the arrest warrant.

With respect to his first allegation of error, the appellant argues that the State's answer was filed in contravention of IC 1971, 35--5--1--2 and 35--5--1--3 (Ind.Ann.Stat. §§ 9--1632--1633, (1956 Repl.)) which provides for an answer 'not later than eight (8) days before the trial' if requested by the defendant in his notice of alibi. The defendant argues that since the State filed its answer on May 24, 1971, two days before the trial, it breached its statutory duty, and hence, the appellant's motion should have been granted.

Appellant's argument suffers from a fatal flaw. IC 1971, 35--5--1--1 (Ind.Ann.Stat. § 9--1631 (1956 Repl.)) provides that notice of alibi must be given 'not less than ten (10) days before the trial' unless the court sets the trial date 'less than fourteen (14) days ahead'. The defense filed its notice on the 19th of May, 1971--seven (7) days prior to trial. On the 7th of May, trial was set for May 26, nineteen days ahead. It becomes clear, therefore, that the defendant failed to file his notice in a timely fashion as prescribed by statute.

Appellant further contends that the State's answer does not set out with any specificity the time of the alleged occurrence and that therefore, the appellant could not file a statutorily permitted reply to the answer for it would be impossible to recite where the defendant was 'during Jan., 1971.'

We recognize the State's obligations with respect to the timely filing of a 'specific statement in regard to the exact date which the prosecution proposes to present at the trial as the date when, and the exact place where' the alleged act was committed. IC 1971, 35--5--1--2. However, the appellant's obvious failure to comply with the alibi notice requirements of IC 1971, 35--5--1--1 forecloses his assertion of rights created by IC 1971, 35--5--1--2. That is to say, IC 1971, 35--5--1--1 is the mechanism which triggers the invocation of IC 1971, 35--5--1--2.

In support of his position appellant cites the following interpretation of the Indiana Alibi statutes:

'The alibi statute, which is of material assistance in enabling the State to detect and disprove a fraudulent alibi, puts duties upon the State as well as the defendant. The defense of alibi is a legitimate defense, and if the accused takes the proper steps pursuant to the statute, the State must be required to discharge its duties, unless good clause be shown for failure so to do. For this error the cause must be reversed.' (our emphasis) Pearman v. State (1953), 233 Ind. 111, 119, 117 N.E.2d 362, 366.

Ironically, the very language that the appellant relies on works to illuminate the inherent weakness of his argument. Pearman explicitly establishes the proposition that adherence to the requirements of IC 1971, 35--5--1--1 is a condition procedent to the operation of the rights and duties created by IC 1971, 35--5--1--2.

IC 1971, 35--5--1--3 provides in part as follows:

'At the tril, if it appears that the defendant has failed to file and to serve upon the prosecuting attorney the defendant's original notice of alibi as prescribed herein, the court shall, in the absence of a showing of good cause for such failure by the defendant, exclude evidence offered by the defendant to establish an alibi.' (our emphasis)

The appellant fails to allege any attempt at trial to show good cause for his failure to file in a timely fashion. Therefore, the trial court might have properly excluded all alibi evidence presented by the appellant. See Lamar v. State (1964), 245 Ind. 104, 195 N.E.2d 98. Obviously, the appellant received benefits not contemplated by the statute and hence should be grateful rather than contentious.

The appellant's second allegation of error--namely, that the trial court should have sustained his objection to evidence of an alleged conspiracy prior to the date shown in the affidavit--is also without merit.

Appellant concedes that where time is not of the essence of the offense the State is not confined to proving the commission on the date alleged in the affidavit, but may prove the commission at any time within the statutory period of limitations. He maintains, however, that this rule yields to limitations imposed by the alibi statute when it is invoked as it was in this case. Appellant alleges that the State had a duty to specify the exact date of the conspiracy in its answer to the appellant's notice of alibi and by failing to meet this obligation (and by failing to timely file an answer as discussed hereinbefore) the appellant was harmed and prejudiced.

Once again the appellant seeks protection under IC 1971, 35--5--1--2 without first complying with IC 1971, 35--5--1--1. Appellant contends--and rightly so--that the aforementioned 'time is not of the essence rule' arises when the alibi statute is invoked. See Evans v. State (1946), 224 Ind. 428, 68 N.E.2d 546. However, we construe invoked to mean correctly invoked--either in accordance with express terms of the statute or by special dispensation of the trial court--which of course, the appellant failed to do. Moreover, the case upon which appellant relies (Stallings v. State (1953), 232 Ind. 646, 114 N.E.2d 771) specifically requires that the defendant show he 'might be harmed unless permitted time to meet the charge as changed' and that therefore, a continuance is required. There is no allegation of such a showing in appellant's brief.

Finally, it is important to note that the State never--neither in the affidavit, nor in the answer to appellant's notice of alibi, nor at trial--changed its allegation as to the date of the consummation of the conspiracy, i.e. the date of the car's destruction. The appellant was on notice of that date (February 9) from the outset and was given an adequate opportunity to file an alibi statement. We believe the State fulfilled its obligation of notice by maintaining a constant adherence to its original allegation.

'Time and place. While it has been held that it is not necessary to allege in the indictment any exact time of the commission of the overt acts, the indictment should allege the time and place of the act done to effect the object of the conspiracy so as to identify it and show that it postdated the conspiracy and was not merely a part of it.' 15A C.J.S., Conspiracy 877.

We now come to the sufficiency of evidence question raised by the appellant.

Appellant contends that the evidence was insufficient to prove the existence of a conspiracy beyond a reasonable doubt. His specific arguments in support of insufficiency are as follows:

(1) The State did not prove that there was an agreement to commit the offense charged--theft. The State failed to establish 'an intelligent and deliberate agreement' between the appellant and at least one other person to exercise control by deception over the property of American Standard Insurance Co. of Wisconsin;

(2) Conspiracy requires that at least one other person know against whom the crime was to be committed, and that the other person must be a co-conspirator;

(3) Proof of mere relationship is insufficient to establish a conspiracy; proof of circumstantial evidence in support of some inference that there was a conspiracy to commit theft by deception is insufficient.

(4) Proof of a conspiracy must come from a source other than the declarations of an alleged co-conspirator.

Appellant further argues taht since an alleged co-conspirator (the State's key witness) was in no way charged with complicity in the crime, the appellant should not have been convicted of the conspiracy due to 'patent inconsistencies' on the record.

When reviewing an appeal on sufficiency of the evidence, first, it must be remembered that this Court will not weigh the evidence nor determine the credibility of the witnesses. Only that evidence most favorable to the State and the reasonable inferences to be drawn therefrom will be considered. As long as there is substantial evidence of probative value sufficient to establish every material element of the crime beyond a reasonable doubt, the verdict will not be disturbed. Jackson v. State (1971), Ind., 275 N.E.2d 538.

An examination of the evidence most favorable to the State reveals a chain of events and conversations taking place over approximately a two-month period. The State's key witness--a friend of the appellant and an alleged co-conspirator--testified that the appellant expressed an intention to 'get rid of' his automobile during the first week of January, 1971 in the presence of the witness and two other alleged...

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  • Gubitz v. State, 3--375A38
    • United States
    • Court of Appeals of Indiana
    • 1 mars 1977
    ...Alexander was a competent witness and his testimony was properly received into evidence. McCraney asserts that in Shelton v. State (1972), 259 Ind. 559, 290 N.E.2d 47, our Supreme Court extended the rule requiring independent evidence of a conspiracy to instances where one co-conspirator gi......
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