Ware v. State
| Citation | 243 Ind. 639,189 N.E.2d 704 |
| Decision Date | 24 April 1963 |
| Docket Number | No. 30203,30203 |
| Parties | James G. WARE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Saul Rabb, Sam Blum, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., Donald L. Adams, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant and one Allen R. Dixon were jointly charged with the crime of second degree burglary in the Shelby Circuit Court. On motion of the defendant Dixon, the cause was continued as to him; and the
cause was submitted to the court for trial without a jury as to the appellant only on June 23, 1961. At the conclusion of the evidence, on the same day, the appellant was found guilty of second degree burglary and sentenced to imprisonment in the Indiana State Prison for a period of not less than [243 Ind. 641] two nor more than five years, and judgment was entered accordingly. Thereafter, on the same date, an order of commitment was entered, which, after setting forth the facts in the judgment, contained the following provision:
First: Appellant assigns and here argues as error, that the court erred in submitting this cause for trial as to this defendant [appellant] only without first formally ruling upon a motion that the defendants be tried separately. Appellant asserts that since no motion was filed asking that the defendants be tried separately, it was error for the court to so try appellant. The contention is without merit. The statute specifically provides:
'When two (2) or more defendants are jointly charged with any offense, whether a felony or a misdemeanor, they shall be tried jointly, unless the court, in its discretion, on the motion of the prosecuting attorney, or of any defendant, or on its own motion, orders separate trials. * * *' [Our italics.] Acts 1935, ch. 92, § 1, p. 286, being § 9-1804 Burns' 1956 Repl.
The trial court has wide discretion in the matter of granting separate trials to co-defendants in a criminal charge. Since the record clearly indicates a determination on the part of the court that the defendants be tried separately, the absence of a formal entry to the effect was a mere technicality. There is nothing in this record which indicates that the trial judge in any way abused his discretion in conducting the trial of the appellant separate from his co-defendant or that this appellant was in anywise prejudiced thereby.
Second: Appellant contends that the evidence was not sufficient as to the identification of the appellant. The conviction of appellant was based on the identification by a witness, Darlene Robins, daughter-in-law of the owner of the burglarized TV and appliance store, who observed appellant in the storeroom, at about 9:30 P.M., through a large plate glass window, for a period of approximately thirty seconds, at a distance of 25 to 30 feet. At the time, he was standing under a bright light reaching for a transistor radio. She described him as being a man, wearing a wind-breaker jacket, about five feet 11 inches tall, with long wavy light brown hair, and without glasses. The witness identified appellant about three hours later at police headquarters, and at the time of the trial was positive of her identification of him.
Appellant makes much of the fact that David C. Robins, owner of the business who also saw him in his store, could not identify him. However, the owner's observation came only after his being summoned by his daughter-in-law and this was at the time the burglar was crawling away from them between the radio and television sets toward the rear of the store, where he had gained entrance by breaking a window. The owner did not see appellant's face and, therefore, obviously could not identify appellant. We cannot say the evidence identifying the appellant as the burglar was not sufficient.
Third: Appellant asserts that the court committed error in sentencing appellant and committing him to the sheriff for the execution of the judgment without first requiring and receiving a precommitment investigation report, as required by Acts 1959, ch. 264, § 2, p. 632, being § 9-2252, Burns' 1962 Cum.Supp. For this reason appellant asserts that the judgment was erroneously entered. The statute provides:
The provision of the above statute is mandatory. Failure of the trial court to comply with its terms is, therefore, under the facts of this case, a proper cause for redress to this court. The order of commitment made, without such precommitment investigation and report, must be vacated.
Four: Appellant asserts and here argues as error the fact that the judge of the Shelby Circuit Court, on February 15, 1962, entered a nunc pro tunc entry in the cause modifying the order of commitment by striking therefrom the provision which suspended the order of commitment. Appellant asserts that this act constituted reversible error for three reasons: First, because the Shelby Circuit Court had lost jurisdiction in the case by reason of the fact that jurisdiction in all criminal cases had been transferred to the Shelby Superior Court on July 1, 1961, by an act of the legislature creating the Shelby Superior Court and defining its jurisdiction; secondly, because the entry was made without any prior notice upon the appellant and was made in his absence, and, third, because there was no written memorandum or memorial of record upon which to sustain the action of the court in making the nunc pro tunc entry.
It is not necessary for us to decide the question presented with respect to the making of the nunc pro tunc entry because, as heretofore stated, the original order of commitment made by the court without a precommitment investigation was improvident and, therefore, it being the first error properly assigned as cause for appeal, all orders thereafter made, including the nunc pro tunc entry, are nullified.
The cause is, therefore, remanded to the Shelby Circuit Court 1 with instructions for the judge thereof to vacate the judgment and order of commitment and the nunc pro tunc entry thereafter made modifying said order of commitment, and thereupon to proceed in the cause in a manner consistent with this opinion. 2
This is an appeal from the judgment of the Shelby Circuit Court sentencing the appellant to the Indiana State Prison and Appellant and one Allen R. Dixon were jointly charged in a two count affidavit with the crimes of Second Degree Burglary and Automobile Banditry in the Shelby Circuit Court. On motion of the defendant Dixon, the cause was continued as to him, and was submitted as to the appellant only, to the court for trial without the intervention of a jury on June 23, 1961. At the conclusion of all the evidence, on June 23, 1961, appellant was found guilty of the crime of second degree burglary as charged in count one of the affidavit and not guilty of the crime of automobile banditry as charged in count two of the affidavit. Judgment was entered that appellant be imprisoned in the Indiana State Prison for a period of not less than two years nor more than five years; that he be disfranchised and rendered incapable of holding any office of trust or profit for a period of two years; that he stand committed until the costs in this action are paid or replevied, and the commitment is now ordered.
also an appeal from the ruling of the Shelby Circuit Court granting a petition for an entry nunc pro tunc in proceedings had after the cause had been transferred to the Shelby Superior Court.
In view of the issues before this court we set out the commitment herein. Such commitment reads as follows:
'BE IT REMEMBERED, that heretofore, towit: At a term of the Shelby Circuit Court of Shelby County, in the State of Indiana, begun, holden and continued at the Court House in the City of Shelbyville, on the 23rd day of June, 1961, the same being the 65th judicial day of the April Term, A.D., 1961, of the said Circuit Court of Shelby County, before the Honorable Harold G. Barger, sole Judge thereof, the following proceedings were had in the cause of
'THE STATE OF INDIANA
'VS
'JAMES G. WARE
NO. 6945 CRIME SECOND DEGREE BURGLARY
'Comes now the State of Indiana, by Robert L. Sheaffer, Prosecuting Attorney; comes also the defendant, in person, and by Sam Blum, and the Court finds that the defendant James G. Ware is ___ of age, and that said defendant is guilty of the crime charged, namely: Second Decree Burglary:
'It is by the Court, therefore ordered and adjudged that the said defendant for the offense by him committed, to make him fine to the State of Indiana in the penal sum of ___ Dollars, that He be committed to the custody of the Board of Trustees of the Indiana Reformatory, to be confined by them according to law imprisoned in the ...
To continue reading
Request your trial
-
Turner v. State
...... However, a search of the record fails to disclose any motion for continuance on the part of the appellant. The granting of separate trials to co-defendants is within the sound discretion of the trial court. Ware v. State (1963), 243 Ind. 639, 189 N.E.2d 704, 1 Ind.Dec. 306; certiorari denied 375 U.S. 934, 84 S.Ct. 337, 11 L.Ed.2d 265. The trial court did not err in granting a separate trial in this case. The trial court is affirmed. ARTERBURN, C.J., and HUNTER and PRENTICE, ......
-
Tina T., Matter of
...... Under I.C. 31-6-14-6, a local coordinating committee (LCC) is to be established in each county of this State to review restrictive placements 1 of wards which have been proposed by a referring agency. 2 The voting members of the LCC are the director of ... Hinton v. State (1979), 272 Ind. 297, 397 N.E.2d 282; Ware v. State (1963), 243 Ind. 639, 189 N.E.2d 704. The legislature has also indicated the crucial nature of I.C. 35-38-1-8 by including a provision in ......
-
Frith v. State
...... The granting of a motion for separate trials rests solely within the discretion of the trial judge. Marx v. State (1957) 236 Ind. 455, 141 N.E.2d 126. Reversible error lies only for an abuse thereof. Johnson v. State (1964) 245 Ind. 295, 198 N.E.2d 373: Ware v. State (1963) 243 Ind. 639, 189 N.E.2d 704. Appellant Frith reasons that since separate trials are necessary, upon motion, in cases where one co-defendant has made confessions or admissions implicating other co-defendants, the same rule should apply when 'damaging evidence of actions by a ......
-
Hardin v. State
...... Such evidence of identification is in our view sufficient. Bryant v. State, supra; Dillard v. State, supra; Barnes v. State (1965), 246 Ind. 485, 205 N.E.2d 539; Ware" v. State (1963), 243 Ind. 639, 189 N.E.2d 704; McMinoway v. State (1972), Ind.App., 283 N.E.2d 553. Compare Groce v. State (1968), 250 Ind. 582, 236 N.E.2d 597 and Leitner v. State (1967), 248 Ind. 381, 229 N.E.2d 459. 1. EVIDENCE OF ALIBI DOES NOT RENDER CONTRARY TESTIMONY LEGALLY. INSUFFICIENT. \xC2"......