Spight v. State
Citation | 10 Ind.Dec. 601,226 N.E.2d 895,248 Ind. 287 |
Decision Date | 16 June 1967 |
Docket Number | No. 30564,30564 |
Parties | Vaughn SPIGHT, Appellant, v. STATE of Indiana, Appellee. |
Court | Supreme Court of Indiana |
Don R. Money, Indianapolis, for appellant.
John J. Dillon, Atty. Gen., Edwin K. Steers (former Atty. Gen.), David S. Wedding (former Deputy Atty. Gen.), for appellee.
1
The appellant was charged by affidavit with the crime of violating the 1935 Narcotic Act as amended. Acts 1935, Ch. 280, § 2, p. 1351; 1961, Ch. 90, § 2, p. 169, being Burns' Ind.Stat.Anno. § 10--1350 (Supp. 1956).
Count One of the affidavit charged the appellant with possession of marijuana and Count Two charged him with selling marijuana. Appellant was found guilty of Count One, namely, possession, and sentenced to the Indiana Reformatory for a period of not less than two nor more than ten years.
Appellant contends that he was a victim of entrapment. The evidence briefly shows that Ernest Haley was employed by the police to approach the appellant outside a grille on the night of May 28, 1963. He asked the appellant if he had any marijuana and the appellant answered 'Yes', whereupon Haley gave the appellant three one dollar bills. The appellant gave Haley a package which, upon later examination, was found to contain marijuana. Officer Kirby Crawley testified to seeing the exchange of the money for the marijuana, and the package, a brown manila envelope, was turned over to this officer, which he later identified on the witness stand.
In Cosilito v. State (1925), 197 Ind. 709, 151 N.E. 721, this Court said:
And in Terrell v. State (1929), 89 Ind.App. 125, 166 N.E. 8, it was said:
The question here presented is too well settled to require further citation of the numerous cases decided by this Court on the point. We find no entrapment in the charge for which appellant was convicted.
We further point out that we do not think that the issue of entrapment is even pertinent in this case, since the appellant was not found guilty of Count Two, the illegal selling of marijuana. He was found guilty only of possession of marijuana. It is apparent from the evidence that appellant possessed the marijuana before he was ever approached by Haley to make the purchase, and it cannot be said that in any sense did Haley induce or entrap the appellant to possess the marijuana.
Appellant further contends that he was not represented by competent counsel because his counsel 'did not question the arrest' and because his counsel 'failed to make timely objections throughout the trial to testimony provided by the state's witnesses.' There is no attempt made by the appellant's present counsel on appeal, who undoubtedly is competent to set out specifically what objections should have been made and what evidence was improperly admitted. Since present counsel has had the benefit of a transcript of the evidence and has been unable to find or present such specifications, we are unable to review the same. Not every failure to object to an error in a trial is evidence of incompetency. Supreme Court Rule 2--17(e), (f); Schweigel v. State (1964), 245 Ind. 6, 195 N.E.2d 848; Stice v. State (1950), 228 Ind. 144, 89 N.E.2d 915.
Also there is a contention made that the evidence does not sustain the finding of guilty. The argument of the appellant is based more upon conjecture and supposition as to whether the jury should have believed the witnesses or not. We must examine the evidence most favorable to the State in determining its sufficiency to support the finding or verdict, and it is amply sustained. Baker v. State (1964), 245 Ind. 129, 195 N.E.2d 91; Tait v. State (1963), 244 Ind. 35, 188 N.E.2d 537.
Finally, it is contended that appellant's constitutional rights were violated because of the lapse of time between the offense and the arrest. No authority is cited for this contention nor was it assigned in the motion for a new trial as a specification therein. We therefore are unable to give it any further consideration. Bays v. State (1959), 240 Ind. 37, 159 N.E.2d 393; Baker v. State (1964), 245 Ind. 129, 195 N.E.2d 91.
The judgment of the trial court is affirmed.
I am unable to agree with the determination reached by the majority opinion herein and dissent thereto.
This is an appeal from a judgment convicting appellant of 'Violation of the 1935 Narcotic Act, (As Amended)'.
Appellant was charged by affidavit in two counts as aforesaid, filed October 23, 1963. He waived arraignment, entered a plea of not guilty, waived trial by jury, and permitted the cause to be tried to the court. Appellant was represented by William Wurster, Public Defender. Trial was had December 5, 1963, and the court having heard the evidence, found the defendant guilty of Count One of the affidavit. After pre-sentence investigation judgment was entered against appellant, sentencing him to the Indiana State Reformatory for not less than two (2) nor more than ten (10) years and imposing a fine of $1.00 and costs.
The affidavit filed herein, in pertinent part, reads as follows:
'The affiant aforesaid, upon his oath aforesaid, further says that the defendant VAUGHT (sic) SPIGHT on or about the 28th day of May, A.D. 1963, at and in the County of Marion in the State of Indiana, did then and there sell a certain narcotic drug, to-wit: Marihuana, to one Ernest Jack Haley, and was not authorized by any law of the United States of America or the State of Indiana to sell such narcotic drug, then and there being * * *'
Appellant filed his motion for a new trial herein, pro se. The motion encompasses six typewritten pages of transcript and basically charges that appellant was not adequately and properly represented by pauper counsel. A portion of the motion for new trial is also taken up with questions relating to the sufficiency of the evidence adduced by the State. Appellant also alleges certain errors of law occurring at the trial to-wit:
'4. For errors of law occuring (sic) at the trial, in this, to-wit:
'(a) That the court erred in the finding thereof, in that upon finding the defendant 'not guilty' of...
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Blackburn v. State
...that total failure to object to certain errors in the trial proceedings does not necessarily constitute incompetency. Spight v. State (1967), 248 Ind. 287, 226 N.E.2d 895. See also Issac v. State (1971), Ind., 274 N.E.2d 231 and Lindsey v. State (1965), 246 Ind. 431, 204 N.E.2d 357. It shou......
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Mendez v. State
...N.E.2d 356. Presentment, by a police agent, of the mere opportunity to commit a crime does not constitute entrapment. Spight v. State, (1967) 248 Ind. 287, 226 N.E.2d 895. In the case before us, there was ample evidence from which the jury could find that the criminal design originated with......
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Isaac v. State, 970S218
...that total failure to object to certain errors in the trial proceedings does not necessarily constitute incompetency. Spight v. State (1967), 248 Ind. 287, 226 N.E.2d 895. Appellants refer us to twelve instances where there was no basis given for the objection. In five of the twelve instanc......
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Lowe v. State
...object to certain errors in trial proceedings does not necessarily constitute incompetency. Blackburn v. State,supra; Spight v. State (1967), 248 Ind. 287, 226 N.E.2d 895; Isaac v. State (1971), Ind., 274 N.E.2d 231; Lindsey v. State (1965), 246 Ind. 431, 204 N.E.2d We believe defense couns......