Webster v. State , 261 Ind. 309 ( 1973 )

Givan, J.^*

Appellant was charged by affidavit in three counts: 1) inflicting injury in the commission of robbery; 2) assault and battery with intent to kill; 3) violation of the 1935 Firearm’s Act. Trial by jury resulted in a finding of guilty as to counts 1 and 2. Appellant was sentenced to life imprisonment in the Indiana State Prison.

The record reveals the following facts:

On November 20, 1970, Gerald F. Leamon was employed as a clerk at the Family Liquor Store in Indianapolis. That evening he was in the liquor store alone when either the appellant or an accomplice entered and asked for a bottle of whiskey. As Leamon rang up the sale on the cash register, the robber ordered him to keep his hands down, produced a pistol and shot him twice in the stomach. Leamon was then forced into a back room, and two more shots were fired into his body. The robber then removed Leamon’s billfold containing $44. He also emptied the cash register which contained $38.

While the holdup was in progress, Geneva Gladson was walking past the store with her six year old son when she noticed a black over yellow Ford automobile parked in front of the liquor store. She noticed that its occupant was watching her in the rear view mirror. She made a mental note of the license number. As she passed the store, she could see a man in the store. She walked on past and entered a fenced-in yard. She then saw the driver of the automobile go into the store. She then crossed the street and hid behind a car where she could watch the store. She saw two men come out, get in the black over yellow Ford and drive away.

Mrs. Gladson then crossed the street and entered the store where she found Leamon coming out of the back room, bleeding profusely. She then called the police to report the robbery.

From Mrs. Gladson’s description of the car and the license number police were able to locate the vehicle, which had been abandoned shortly after the robbery. Appellant’s fingerprints were found on the door handle on the passenger side.

Police obtained a warrant and arrested appellant where he was living with one Barbara Harper.

Upon questioning, appellant denied having a gun. However, a gun, which was later identified as the one used in the robbery, was found by the officers in a search of the premises.

After being advised of his constitutional rights, the appellant signed a statement which was admitted in evidence at the trial wherein he admitted taking part in the robbery, but claimed that he only drove the getaway car, and that the robbery and shooting was done by one Romus Fields.

Appellant’s brother, Irving James Webster, testified that the robbery was committed by him and the appellant; that he was the one who drove the getaway car, and that it was his brother, the appellant, who committed the robbery and shot Mr. Leamon.

At the trial Mr. Leamon identified the appellant as his assailant; however, it was established that at a prior hearing Mr. Leamon had identified Romus Fields as his assailant.

In this state of double confusion as to the details of the robbery, the appellant called the attorney of Irving James Webster as a witness and asked him if he had had conversations with the prosecuting attorney and police officers as to any promises of leniency for his client if his client would testify against the appellant. The trial court refused to permit the attorney to answer these questions on the ground that it was a violation of the attorney-client privilege. However, the information sought was not a conversation between the attorney and his client. It was a conversation between the attorney and a third party at the request of the client. Such conversation cannot be considered confidential. C. McCORMICK, LAW OF EVIDENCE (2d ed. 1972), § 91, p. 188. However, the error in refusing to permit the attorney to answer the question was harmless. Although the jury was faced with a double set of facts, one based upon the appellant’s confession, the other on the testimony of his brother, all of the evidence pointed to the guilt of the appellant either as an accomplice or as the principal in the perpetration of the crimes charged. In this situation the jury could totally disregard the testimony of appellant’s brother and still have sufficient evidence upon which to base appellant’s conviction. An accessory to a crime may be charged as if he were a principal. IC 35-1-29-1, BURNS IND. ANN. STAT., (1956), § 9-102.

The trial court is, therefore, affirmed.

Arterburn, C.J. and Hunter, J., concur; Prentice, J., concurs in result; DeBruler, J., dissents with opinion.

* This case was reassigned from another Justice to the writer of this opinion on June 27,1973.