Webb v. State, 970S200
| Decision Date | 19 July 1972 |
| Docket Number | No. 970S200,970S200 |
| Citation | 284 N.E.2d 812,259 Ind. 101 |
| Parties | Wayne Cozette WEBB, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
William C. Erbecker, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., for appellee.
Defendant (Appellant) was charged by affidavit in two counts charging him with Robbery and Armed Robbery. He was convicted in a trial by jury of Armed Robbery and sentenced to twenty years imprisonment. Three issues are presented by his appeal.
(1) Did the charging of two counts of robbery in the same affidavit deprive the defendant of a fair and impartial trial?
(2) Did the trial court err in rereading to the jury two of the final instructions?
(3) Did the trial court err by instrucing the jury that evidence that a witness had been previously convicted of a crime may be considered, in connection with all the other facts and circumstances in evidence, in deciding the weight to be given to the testimony of such witness?
The sufficiency of the evidence has not been challenged. Several eye witnesses identified the defendant as one of two armed men who robbed the bartender in the victimized tavern at gunpoint and as the one of the two who put the stolen money in a paper sack. The defendant denied that he participated in the robbery and testified that he had not been in the tavern but was only coincidentally in the alleyway at the rear of the tavern at the time of his capture immediately following the robbery. He testified that the money in a paper sack taken from his person at the time of his arrest had been won from friends earlier in the day and that the gun, which the police officers testified he had dropped at the time he was apprehended, was not his. His accomplice, Robert Turnbow, was a witness for the defendant and testified that he had been convicted of the robbery but that he was the sole participant. On cross examination, he admitted to having been previously convicted of third degree burglary, public intoxication, vehicle taking, malicious trespass and disorderly conduct.
(1) Defendant relies upon our decision in Kokenes v. State (1938), 213 Ind. 476, 13 N.E.2d 524 in support of his contention that he was deprived of a fair and impartial trial by reason of the affidavit containing two counts, one of which was an offense included in the other. In that case, by way of dicta, we stated that a defendant could not be convicted upon two counts if one was necessarily included in the other. We further commented that the judgment should have been guilty upon the count charging the greater offense but that since the sentences were to run concurrently, perhaps the error was harmless. The convictions were reversed upon other grounds. We acknowledge that the State cannot split up one crime and prosecute it in parts; but we are not here confronted with that situation. Rather, the offense charged in one count was necessarily included in the offense charged in the other. We do not perceive why the affidavit contained both counts, since only the greater count was required to authorize the giving of instructions upon both crimes and a conviction upon either. Likewise, if the defendant regarded the dual form of the affidavit as prejudicial, we do not perceive why he did not move the court to require the State to elect the count upon which it would prosecute or otherwise raise the question in the pleading stages. We think the dual form of the affidavit was error, since convictions upon both counts could not have been sustained. Here, however, there was a conviction upon but one of the two counts. The potential harm stemming from the error did not ripen. Identical circumstances were presented to us in Carter v. State (1951), 229 Ind. 205, 96 N.E.2d 273. The appellant in that case had been convicted of robbery and armed robbery arising from a single act, and judgment was entered and the appellant sentenced upon both counts. The State, relying upon the aforementioned dicta from Kokenes v. State (supra), insisted that the error was harmless, since the sentences ran concurrently. We reconsidered our speculative comment in that case and held that the error was not harmless, in view of the upper limit of the indefinite sentence for robbery (since reduced by our decision in Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815) exceeding the upper limit of a determinate sentence provided for armed robbery and the further possible difference in parole rights. The error, however, was rectified, not by reversing both convictions but rather by reversing as to the charge of robbery and affirming as to the charge of armed robbery. Counsel has presented us with neither authority nor logic to persuade us that the error deprived him of a fair and impartial trial. No evidence was admitted nor was any instruction given that would not have been equally admissible and applicable had only the greater offense been charged. Although we think the affidavit was erroneous in form, the error was rendered harmless by the verdict.
(2) After the jury commenced its deliberation, it returned with the following question directed to the court:
'Is Count I or Count II determinate or indeterminate in sentencing,'.
In response thereto, the court in the presence of the prosecutor, the defendant and his counsel and by agreement of the parties, re-read two of the twenty-two final instructions that had been previously given. The two instructions so re-read defined the crimes and penalties for robbery and armed robbery. Defendant has cited us to several cases holding that needless repetition in instructions amount to an argument on the part of the court and may mislead the jury and that while such may not always be reversible error, it is always bad practice. We agree with such statements but do not see their application to the case before us. Here, the jury requested further instructions concerning the penalties that could be assessed. We, therefore, cannot say that the action of the court was needless. Further the defendant agreed to such action.
(3) The trial court gave the following final instruction without objection by the defendant:
As recently stated in Taylor v....
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