Swininger v. State, No. 975S232

Docket NºNo. 975S232
Citation265 Ind. 136, 352 N.E.2d 473
Case DateAugust 10, 1976

Page 473

352 N.E.2d 473
265 Ind. 136
Wayne SWININGER and Larry M. Thomas, Appellants (Defendants below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 975S232.
Supreme Court of Indiana.
Aug. 10, 1976.

[265 Ind. 137]

Page 475

William R. Wilson, Harry L. Zerbe, Lawrenceburg, Bobby Jay Small, Indianapolis, for appellants.

Theo. L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendants (Appellants) were convicted in a joint trial to a jury of (1) inflicting injury in the commission of a robbery 1, (2) commission of a felony (robbery) while armed 2, and (3) assault and battery 3.

[265 Ind. 138] All charges arose from the armed robbery of Vearl Hertel, at his package liquor store in the town of Brookville, Franklin

Page 476

County, and a physical injury inflicted upon him in the course of such robbery. The defendants were apprehended while attempting to escape, immediately following the robbery. They were each sentenced to life imprisonment upon the charge of inflicting injury and to imprisonment for a period of six months upon the assault and battery charge, said terms to run concurrently. Upon the charge of armed robbery, each defendant was sentenced to imprisonment for a term of twenty years, such term to run consecutively to the life term.

Three alleged errors raised by the motions to correct errors are presented by the appeal and a fourth, not so presented, is nevertheless reviewed as an assignment of fundamental error.

(1) Error in the admission of certain of the State's exhibits.

(2) Error in granting the State twenty peremptory juror challenges.

(3) Error in the denial of a motion for a change of venue from the county.

(4) Error in sentencing the defendants upon all verdicts.

[265 Ind. 139] ISSUE I

There has been no challenge to the sufficiency of the evidence. The defendants were apprehended shortly after the criminal acts were committed and while fleeing from the scene. The defendant, Thomas, was seen jumping from the escape automobile while it was being pursued by police officers, and he was arrested in a corn field into which he had fled. The defendant, Swininger, was arrested at the scene of his wrecked automobile which had gone out of control during the police pursuit. Three of the exhibits objected to were photographs depicting money found at the time of the arrests, and some of which was found upon each defendant and some in a box in the escape vehicle. The fourth exhibit objected to was five cans of beer in a six-can container.

The defendants contend that the exhibits objected to were irrelevant in that there was no testimony specifically identifying the money and the beer as the same as the money and the beer taken in the robbery. 1 In support of this assignment, the defendants cite McCormick on Evidence, 2d Ed., § 185, which states that evidence that does not tend to prove the proposition for which it is offered is irrelevant and inadmissible. Such rule of evidence can not be questioned, but it is inapplicable in view of the relevancy of the exhibits admitted. A large sum of money had been taken in the robbery, much of it in coins. The sum recovered approximated the amount estimated to have been stolen. A six-can container of beer had also been taken. Among other items found in the possession of the defendants and admitted into evidence were bank checks made payable to the robbery victim and bank currenty-bags and small boxes described by the victim as like those owned by him and also taken in the robbery.

The exhibits complained of tended to connect the defendants to the robbery and were therefore relevant and admissible. It is not required that the connection be absolute. The absence of a direct link goes only to the weight to be given to the evidence and not to its admissibility. Colvin v. [265 Ind. 140] State, (1976) Ind., 346 N.E.2d 737; Coleman v. State, (1975) Ind., 339 N.E.2d 51; Stone and Radford v. State, (1968) 251 Ind. 198, 240 N.E.2d 487; Foreman v. State, (1938), 214 Ind. 79, 14 N.E.2d 546.

ISSUE II

The defendants have briefed this issue in such manner as to indicate a claimed error in granting them, individually, an insufficient number of peremptory challenges. The motions to correct errors in the order book entry, however, reflect that the objections were addressed to the

Page 477

court's action in granting the State an excessive number of challenges. The brief asserts that each defendant was limited to ten peremptory challenges, while the State was permitted twenty, but the record does not bear this out. There was error committed in that the court granted to both the State and the defense double the number of peremptory challenges authorized by the statute, Inc.Code § 35--1--30--2, and 3 (Burns 1975). Martin v. State, (1974) Ind., 314 N.E.2d 60. There is some indication in the record that the defendants divided the defense challenges between them, but there is nothing to indicate that they were required to do so.

The defendants argue that each of them should have been permitted to exercise twenty peremptory challenges, for a total of forty defense challenges. They have cited us to the annotation in 21 A.L.R.3d 725, in support of their contention that the use of the singular 'defendant' in Ind.Code § 35--1--30--2 rather than 'defendant or defendants,' 'respondent' or 'the party' indicates a legislative intent that when two...

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34 practice notes
  • Elmore v. State, No. 1178S255
    • United States
    • Indiana Supreme Court of Indiana
    • November 8, 1978
    ...and inflicting injury in the commission of a robbery. Bobbitt v. State, (1977) Ind., 361 N.E.2d 1193; Swininger v. State, (1976) Ind., 352 N.E.2d 473; Thomas v. State, (1976) 264 Ind. 581, 348 N.E.2d 4. See also Hudson v. State, (1976) Ind., 354 N.E.2d 164 (vacating sentence for rape where ......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...jury so infected with preconceived opinions as to have been unable to judge Snyder on the law and the evidence. Swininger v. State (1976), 265 Ind. 136, 352 N.E.2d Snyder also alleges that the trial court abused its discretion in denying two motions for a continuance. The denial of the firs......
  • Hunter v. State, No. 1--976A168
    • United States
    • Indiana Court of Appeals of Indiana
    • March 3, 1977
    ...delay had been questioned by the State on the cross-examination of Frederick, Jr. The appellants cite Swininger v. State (1976), Ind., 352 N.E.2d 473 for the proposition that the link between evidence and the defendants need not be absolute. Swininger involved the introduction of several it......
  • Porter v. State, No. 177S14
    • United States
    • Indiana Supreme Court of Indiana
    • July 3, 1979
    ...additional sentence for the lesser offense. Bobbit v. State, (1977) 266 Ind. 164, 168, 361 N.E.2d 1193, 1196; Swininger v. State, (1976) 265 Ind. 136, 143, 352 N.E.2d 473, 478-79. Compare Elmore v. State, (1978) Ind., 382 N.E.2d 893. Accordingly, the sentence for armed robbery must be This ......
  • Request a trial to view additional results
34 cases
  • Elmore v. State, No. 1178S255
    • United States
    • Indiana Supreme Court of Indiana
    • November 8, 1978
    ...and inflicting injury in the commission of a robbery. Bobbitt v. State, (1977) Ind., 361 N.E.2d 1193; Swininger v. State, (1976) Ind., 352 N.E.2d 473; Thomas v. State, (1976) 264 Ind. 581, 348 N.E.2d 4. See also Hudson v. State, (1976) Ind., 354 N.E.2d 164 (vacating sentence for rape where ......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...jury so infected with preconceived opinions as to have been unable to judge Snyder on the law and the evidence. Swininger v. State (1976), 265 Ind. 136, 352 N.E.2d Snyder also alleges that the trial court abused its discretion in denying two motions for a continuance. The denial of the firs......
  • Hunter v. State, No. 1--976A168
    • United States
    • Indiana Court of Appeals of Indiana
    • March 3, 1977
    ...delay had been questioned by the State on the cross-examination of Frederick, Jr. The appellants cite Swininger v. State (1976), Ind., 352 N.E.2d 473 for the proposition that the link between evidence and the defendants need not be absolute. Swininger involved the introduction of several it......
  • Porter v. State, No. 177S14
    • United States
    • Indiana Supreme Court of Indiana
    • July 3, 1979
    ...additional sentence for the lesser offense. Bobbit v. State, (1977) 266 Ind. 164, 168, 361 N.E.2d 1193, 1196; Swininger v. State, (1976) 265 Ind. 136, 143, 352 N.E.2d 473, 478-79. Compare Elmore v. State, (1978) Ind., 382 N.E.2d 893. Accordingly, the sentence for armed robbery must be This ......
  • Request a trial to view additional results

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