Zink v. State , 250 Ind. 587 ( 1968 )

Arterburn, J.

The appellant was charged with assault and battery with intent to commit robbery and was found guilty as charged. He claims the trial court erred in overruling his motion for a new trial, and argues that the verdict is contrary to law and is not sustained by sufficient evidence. Where the sufficiency of the evidence is raised, this Court will only consider that evidence most favorable to the State, together with all reasonable and logical inferences to be drawn therefrom. Fisher v. State (1968), 247 Ind. 529, 219 N. E. 2d 818; Ponos v. State (1962), 243 Ind. 411, 184 N. E. 2d 10. For that purpose, we must briefly review the evidence favorable to the sustaining of the verdict in favor of the State.

The evidence shows that on February 2, 1967, Robert Clarkson, Jr. left the Elks Country Club in Sullivan, Indiana around 1:20 a.m. and proceeded to Lackey’s Lounge, which was located in the City of Sullivan, parked his car behind the lounge, got out and started towards the back entrance of that place. As he approached the back door, two boys, Robert Springer and Larry Morin told him that the door was locked and that he would have to go to the front door. At the same time, the appellant, James Zink and four other hoys approached, and suddenly, without warning or provocation, Zink grabbed Clarkson around the neck and threw him to the ground. Zink got on top of Clarkson and beat him about the head and face. Clarkson says he felt the assailant going through his pockets. Larry Morin tried to pull Zink off Clark-son and Zink proceeded to fight Morin. Another one of the boys with Zink attacked Robert Springer. Zink then said: “Get his billfold, get his billfold.” When Clarkson got up he went to the back door and began knocking to be let in. While Clarkson was waiting to be let in at the back door, he heard the boys who had attacked him talking out in the alley, and one of them said: “Did you get his billfold, get his money?” and heard one reply: “No, I don’t think I did.” One of them then said: “Where is he, up there by the door?” Shortly thereafter the police arrived. Several articles belonging to Clarkson (two bank books, cigarette lighter, pencil and glasses case), were found by the police ten or fifteen feet from the rear of Lackey’s Lounge where Clarkson had been attacked. The police shortly thereafter picked up the appellant and the other boys identified by Larry Morin at Bert and Fin’s Truck Stop in Shelbum, Indiana.

Appellant first argues that the venue was not properly proved. However, the testimony is undisputed that Lackey’s Lounge is located in the city of Sullivan and the attack occurred within ten or fifteen feet of the rear door of that place. This Court judicially knows that the city limits of Sullivan is located a number of miles from the boundary line of Sullivan county, and necessarily the attack would have had to have taken place in Sullivan county. Buhmeier v. State (1984), 206 Ind. 645, 190 N. E. 857.

There is other evidence of a substantial nature which would be sufficient for the jury to conclude that the alleged crime occurred in Sullivan county, Indiana. The state need not establish venue by a direct question and answer.

Appellant next urges that there is no proof of intent to rob. Of course it is not necessary to prove that a larceny actually occurred or that property was actually taken. It is necessary to prove only that the assault and battery is made with intent to take property feloniously. The evidence shows that Clarkson, on direct and cross-examination, made it clear that he felt the appellant going through his pockets during the attack, although on cross-examination at one place he answered negatively to the question of whether he knew the assailant had gotten into his pockets. Later, on re-direct and re-cross, he stated he actually felt the assailant going through his pockets, but did not know until later whether anything had been taken. The jury has a right to take into consideration the fact that there is no evidence of any provocation for the attack upon Clarkson by the appellant, along with the inquiry of the appellant: “Did you get his billfold, get his money ?” These statements show an intent to commit a robbery by the attack, and there was sufficient evidence for the jury to draw such a conclusion. Christen v. State (1950), 228 Ind. 30, 89 N. E. 2d 445.

Appellant claims he was denied a fair trial because he alleges the jury saw him handcuffed by a deputy U. S. Marshal on leaving the court room. There is no record showing that the appellant objected timely to such action, even if it is assumed that it was prejudicial. The question is raised for the first time in the motion for a new trial.

Appellant further urges that the jury was guilty of misconduct in that it separated without leave of court after retiring to deliberate. There is no showing that the appellant was prejudiced in any fashion, if such action took place, or that it was promptly called to the attention of the court. Misconduct of the character alleged must be promptly called to the attention of the court. Greenwalt v. State (1965), 246 Ind. 608, 209 N. E. 2d 254; Hatfield v. State (1962), 243 Ind. 279, 183 N. E. 2d 198; Peak v. State (1960), 240 Ind. 334, 163 N. E. 2d 584.

Finally appellant urges that his tendered instruction No. 7 was erroneously refused. In substance the instruction informs the jury that it must believe beyond a reasonable doubt that the defendant intended to rob Robert Clarkson, Jr. before he could be found guilty. ■ The instruction is also repetitious. It is further covered by the court’s preliminary instructions 6 and 15 with reference to requiring proof of every material fact beyond a reasonable doubt before the defendant could be found guilty. It is not error to refuse a requested instruction if it has already been adequately covered by other instructions given. Finton v. State (1963), 244 Ind. 396, 193 N. E. 2d 134.

Appellant claims error in refusal to give his tendered instructions 2, 3, 8 and 10. However, these claimed errors are not properly before the court, since they were not separately specified in the motion for a n.ew trial.

The judgment of the trial court is affirmed.

Lewis, C. J., and Hunter, J., concur; Jackson, J., dissents with opinion in which Mote, J., concurs.