Tibbs v. State

• Decision Date: 30 November 1970
• Docket Number: No. 270S24,270S24
• Citation: 255 Ind. 309,263 N.E.2d 728
• Court: Indiana Supreme Court
• Parties: French Chester TIBBS, Appellant, v. STATE of Indiana, Appellee.

Page 728

263 N.E.2d 728

255 Ind. 309

French Chester TIBBS, Appellant, v. STATE of Indiana, Appellee.

No. 270S24.

Supreme Court of Indiana.

Nov. 30, 1970.

Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen. of Ind., Robert A. Zaban, Deputy Atty. Gen., Indianapolis, for appellee.

JACKSON, Judge.

Appellant was charged by an indictment in two counts with the crimes of Robbery and Inflicting an Injury While in Commission of a Robbery, said indictment reading in pertinent part as follows:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that FRENCH CHESTER TIBBS on or about the 21st day of JUNE, A.D. 1969, at and in the County of Marion and in the State of Indiana, did then and there unlawfully, feloniously, forcibly by violence and putting MARSHALL E. RANDLE in fear, take from the person and possession of the said MARSHALL E. RANDLE, a watch then and there of the value of Twelve and 00/100 ($12.00) Dollars which watch the said MARSHALL E. RANDLE then and there lawfully held in his possession and was then and there the property of the said MARSHALL E. RANDLE, 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.

COUNT TWO:

The Grand Jurors aforesaid, upon their oaths as aforesaid, do further say and charge that the said FRENCH CHESTER TIBBS on or about the 21st day of JUNE, A.D. 1969, at and in the County of Marion and in the State of Indiana, did then and there unlawfully, feloniously, forcibly by violence and putting MARSHALL E. RANDLE in fear, take from the person and possession of the said MARSHALL E. RANDLE, a watch then and there of the value of Twelve and 00/100 ($12.00) Dollars which watch the said MARSHALL E. RANDLE then and there lawfully held in his possession and was then and there the property of the said MARSHALL E. RANDLE, and the said FRENCH CHESTER TIBBS while engaged in committing the robbery aforesaid, did then and there unlawfully and feloniously inflict a physical injury, to-wit: wounds and injuries on and about the arm and body of the said MARSHALL E. RANDLE with a knife the and there held in the hands of the said FRENCH CHESTER TIBBS 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.'

On October 16, 1969, appellant waived arraignment and entered a plea of not guilty to the crimes as charged. The trial of this cause commenced on November 7, 1969; said cause was tried to the court without the intervention of a jury. On the same day the court found appellant guilty as charged on each count of the indictment and ordered a Pre-Commitment Investigation Report to be filed. On November 21, 1969, the court sentenced appellant to the Indiana State Reformatory for life.

Appellant filed his motion for new trial on November 21, 1969, said motion attacking the finding of the court as not sustained by sufficient evidence and contrary to law. Appellant's motion for new trial was overruled the same day.

Appellant's Assignment of Errors on appeal are as follows:

'1. That the trial Court erred in granting (sic) the Motion for Discharge at the close of the State's evidence.

2. That the Court erred in overruling the Motion for New Trial filed on behalf of appellant.'

Appellant contends that there was absolutely no evidence of probative value presented to the trial court to prove that he was guilty of the crimes charged beyond a reasonable doubt, and, therefore, his conviction should be reversed. In reviewing the allegation of insufficient evidence, this Court will not weigh the evidence nor resolve questions of credibility of witnesses, but will look to that evidence and the reasonable inferences therefrom which support the finding of the trial court. Asher v. State (1969), Ind.,244 N.E.2d 89. The conviction will be affirmed if, from that viewpoint, there is evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Smith v. State (1970), Ind., 260 N.E.2d 558.

The facts presented to the trial court in the case at bar are as follows: At 10:40 p.m. on June 21, 1969, the appellant and Marshall E. Randle were present at a party in the 1200 block of 29th Street in the City of Indianapolis. While they were outdoors, the appellant asked Randle what time it was, and when Randle looked at his watch, the appellant attempted to take the watch off Randle's wrist. Randle resisted and then walked away. As he did so, he was hit in the head with a beer bottle. Then he was pushed into some bushes by the appellant and approximately five other persons, sustained a cut on his arm, and his watch was taken forcibly.

The statute under which the appellant was charged and convicted is Burns' Ann.Stat. § 10--4101 (1956 Repl.), which reads in pertinent part as follows:

'Whoever takes from the person of another any article of value by violence or by putting in fear, is guilty of robbery * * *. Whoever inflicts any wound or other physical injury upon any person with any firearm, dirk, stilleto, bludgeon, billy, club, blackjack, or any other deadly or dangerous weapon or instrument while engaged in the commission of a robbery, or while attempting to commit a robbery, shall, upon conviction, be imprisoned in the state prison for life.'

The elements of the crime of robbery are, therefore: (1) an unlawful taking, (2) from the person of another, (3) of any article of value, (4) by violence or putting in fear. The essential elements of the crime of inflicting an injury while in the commission of a robbery are as follows: (1) the inflicting of any wound or physical injury, (2) upon any person, (3) with a firearm, dirk, stilleto, bludgeon, billy, club, blackjack, or any other deadly or dangerous weapon or instrument, (4) while engaged in the commission of, or while attempting to commit, a robbery.

In order for the appellant's conviction to be sustained, it is necessary that the record show that the State proved each of the elements listed above. We feel the State has failed to adequately discharge its burden of proof in the case at bar with respect to Count Two of the indictment.

On page 6 of its brief, the State contends that '* * * no matter what instrumentality was used to inflict the cut which required several stitches on Randle's arm * * *, it would have been a deadly or dangerous weapon or instrument within the ambit of Burns' (1956 Repl.) § 10--4101, supra, by virtue of the way in which it was employed.' Solely by means of such a...