Webb v. State, No. 970S200

Docket NºNo. 970S200
Citation284 N.E.2d 812, 259 Ind. 101
Case DateJuly 19, 1972

Page 812

284 N.E.2d 812
259 Ind. 101
Wayne Cozette WEBB, Appellant,
v.
STATE of Indiana, Appellee.
No. 970S200.
Supreme Court of Indiana, In Banc.
July 19, 1972.
Rehearing Denied Sept. 15, 1972.

William C. Erbecker, Indianapolis, for appellant.

[259 Ind. 102] Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., for appellee.

PRENTICE, Justice.

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.

Page 813

(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.

[259 Ind. 103] (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...

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43 practice notes
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 Marzo 1979
    ...Rather, fundamental error is error which, if not rectified, would deny the appellant 'fundamental due process.' Webb v. State (1972) 259 Ind. 101, 284 N.E.2d The proposition that a violation of a constitutional right does not necessarily establish fundamental error is explained in detail Pa......
  • Wallace v. Duckworth, No. 85-1247
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 19 Noviembre 1985
    ...mistake, see Young v. State, 249 Ind. 286, 289, 231 N.E.2d 797, 799 (1967), or a denial of fundamental due process, see Webb v. State, 259 Ind. 101, 106-07, 284 N.E.2d 812, 814-15 Indiana also provides means for appealing a conviction when (a) new issues are discovered after the defendant's......
  • U.S. v. Papia, Nos. 76-1420
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 19 Agosto 1977
    ...321 N.E.2d 322, 324 (4th Dist. 1974) (misdemeanor theft); Fletcher v. State, 340 N.E.2d 771, 774-76 (Ind., 1976) (theft); Webb v. State, 259 Ind. 101, 284 N.E.2d 812, 814 n.1 (1971) The Second, Third and District of Columbia Circuits, however, have found prior theft and armed robbery convic......
  • Owen v. State, No. PS
    • United States
    • Indiana Supreme Court of Indiana
    • 2 Noviembre 1978
    ...as a lesser-included offense. Since the jury then convicted of the greater offense, there is no reversible error. Webb v. State, (1972) 259 Ind. 101, 103, 284 N.E.2d 812, [269 Ind. 524] It is next asserted that appellant's Motion for Mistrial should have been granted, based on alleged juror......
  • Request a trial to view additional results
43 cases
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 Marzo 1979
    ...Rather, fundamental error is error which, if not rectified, would deny the appellant 'fundamental due process.' Webb v. State (1972) 259 Ind. 101, 284 N.E.2d The proposition that a violation of a constitutional right does not necessarily establish fundamental error is explained in detail Pa......
  • Wallace v. Duckworth, No. 85-1247
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 19 Noviembre 1985
    ...mistake, see Young v. State, 249 Ind. 286, 289, 231 N.E.2d 797, 799 (1967), or a denial of fundamental due process, see Webb v. State, 259 Ind. 101, 106-07, 284 N.E.2d 812, 814-15 Indiana also provides means for appealing a conviction when (a) new issues are discovered after the defendant's......
  • U.S. v. Papia, Nos. 76-1420
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 19 Agosto 1977
    ...321 N.E.2d 322, 324 (4th Dist. 1974) (misdemeanor theft); Fletcher v. State, 340 N.E.2d 771, 774-76 (Ind., 1976) (theft); Webb v. State, 259 Ind. 101, 284 N.E.2d 812, 814 n.1 (1971) The Second, Third and District of Columbia Circuits, however, have found prior theft and armed robbery convic......
  • Owen v. State, No. PS
    • United States
    • Indiana Supreme Court of Indiana
    • 2 Noviembre 1978
    ...as a lesser-included offense. Since the jury then convicted of the greater offense, there is no reversible error. Webb v. State, (1972) 259 Ind. 101, 103, 284 N.E.2d 812, [269 Ind. 524] It is next asserted that appellant's Motion for Mistrial should have been granted, based on alleged juror......
  • Request a trial to view additional results

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