Patton v. State ( 1969 )

Givan, J.

Appellant was charged in the Monroe Superior Court with the crimes of inflicting physical injury in the perpetration of a robbery, armed robbery and conspiracy to commit a felony. Trial by jury resulted in a verdict of guilty of the charge of inflicting an injury in the perpetration of a robbery. Appellant was sentenced to the Indiana State Prison for life. The sole assignment of error is the overruling of appellant’s motion for new trial. The motion for new trial reads as follows:

“Comes now the defendant in the above-entitled cause and moves the Court for a new trial thereof upon the following grounds, and for the following reasons:

“(1) Error of law occurring at the trial, in this, that the Court overruled the defendant’s motion for a directed verdiet at the conclusion of the presentation of the State’s evidence, which said oral motion was predicated on the following propositions:

“(a) That the State has failed to prove that physical injury was inflicted upon complainant, Yelma Mood, with a ‘bludgeon’ in that under the statute a battery acid jar, as described in the evidence taken in this case, would not be considered as a ‘bludgeon’; that said statute refers to the use of dirk, firearm, gun, stiletto, bludgeon, billy club, blackjack, and that a battery acid jar, under the doctrine of ejusdem generis would not fit in this legal categorization;

“(b) That the State has failed to prove that the money was taken from the person of the complainant, Velma Mood.

“(2) Error of law occurring at the trial in this, that the Court erred in giving State’s tendered instruction number ten (10), over the defendant’s objection, which instruction and objection read as follows:

_ “ ‘You are hereby instructed that a glass jar may be considered a bludgeon as that term is used in Burns’ Indiana Statutes 10-4101’.

“ ‘Defendant now objects to the State’s tendered instruction number ten which the Court indicates will be given as modified and for grounds to the objection would argue, number one, that a glass jar cannot be considered as a dangerous weapon or a bludgeon in and of itself and that the term glass jar is not one which would be includable under the doctrine of ejusdem generis in the class of weapons set out in Burns 10-4101, and that the giving of such an instruction is prejudicial to the defendant and that the instruction assume facts which are not in evidence in this case in that the evidence has shown that the glass jar was of cylindrical nature without any neck and that it was not therefore susceptible to being used as a weapon as such; and for the further reason that a glass jar of the nature of the one described in evidence in this case could not be considered as a bludgeon as the word is defined in the law dictionary, Black’s law dictionary.’

“(3) Error of law occurring at the trial, in this, to-wit: that the Court erred in refusing to give defendant’s tendered instruction number eight (8), which instruction reads as follows:

“ ‘So long as you have a reasonable doubt as to the guilt of the defendant of any of the offenses charged in the affidavit herein, you cannot convict the defendant of such offense or offenses of which you have a reasonable doubt; and if, you find the defendant guilty, and have a reasonable doubt of which of the offenses charged he is guilty, you should find him guilty only of that offense of which you have no reasonable doubt of his guilt’.

“(4) That the verdict of the jury is contrary to law.

“(5) That the verdict of the jury is not sustained by sufficient evidence.

“WHEREFORE, the defendant prays the Court for a new trial of said cause.”

The facts most favorable to the State disclose that on the 30th day of November, 1966, Mrs. Velma Mood who, with her husband, owned a grocery store in Kirksville, Indiana, was working in the grocery store in the early morning when two youths, one of whom was identified as the appellant in this case, entered the store. For the next two or three hours these youths made several trips in and out of the store. The appellant, Robert Patton, was known to Mrs. Mood.

At approximately five minutes to eleven that morning a Mrs. Dorothy Teague entered the store and saw the appellant and his companion in the store. As she was making a purchase she asked Mrs. Mood if she was afraid, to which Mrs. Mood nodded her head in the affirmative. Mrs. Teague then left the store but returned at about ten minutes after eleven. As she entered the store she observed that a bottle had been broken and was lying on the floor. Mrs. Mood’s hair was wet from a liquid that was running down on her body, and she was bleeding from cuts behind her ear and on her arms.

Shortly before entering the store for the second time Mrs. Teague had observed the appellant and his companion pass her house on a motorcycle.

Mrs. Mood herself testified that at about 11:00 o’clock the appellant had come around the counter in the store with a butcher knife in his hand and had said: “Velma, I want your money. Get a paper sack and put the money, change and all in it.”

The appellant then pulled the telephone cord from the wall and told Mrs. Mood to get in the back room. However, after placing the money in the sack Mrs. Mood ran to the front of the store. The appellant grabbed a bottle of radiator cleaner and hit her over the head with it. It was this fluid which Mrs. Teague had observed in Mrs. Mood’s hair and running down on her body.

The appellant overtook Mrs. Mood at the door where a scuffle ensued, during which Mrs. Mood was cut with a butcher knife the appellant was holding.

Appellant and his companion then ran from the store and left on a motorcycle. The amount of money obtained by the appellant and his companion from Mrs. Mood was between $100 and $150.

We find no merit to appellant’s first claimed error in his motion for new trial that the bottle with which Mrs. Mood was hit was not a bludgeon within the meaning of the statute. In the case of Short v. State (1954), 234 Ind. 17, 122 N. E. 2d 82, this Court, speaking through Judge Gilkison, held that an affidavit alleging injury by a soft drink bottle was sufficient to come within the definition of the word “bludgeon” used in the statute. The statute reads as follows:

“Whoever takes from the person of another any article of. value by violence or by putting in fear, is guilty of robbery, and on conviction shall be imprisoned not less than ten [10] years nor more than twenty-five [25] years, and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period. Whoever inflicts any wound or other physical injury upon any person with any firearm, dirk, stiletto, bludgeon, billy, club, blackjack, or any other deadly or dangerous weapon or instrument while engaged in the commission of a robbery, or while attempting to commit a robbery, shall, upon conviction, be imprisoned in the state prison for life. [Acts 1941, ch. 148, § 6, p. 447.]” Burns’ Ind. Stat. Ann. § 10-4101.

Judge Emmert wrote a dissenting opinion in which he disagreed with Judge Gilkinson in that case stating that in his opinion the bare statement that a soft drink bottle was used without the allegation that it was used as a bludgeon was not sufficient.

In the case at bar it will be noted that the State charged the appellant with having used a bludgeon, the charge upon which he was convicted, reading as follows:

“Larry Ikerd being duly sworn, on his oath says that Robert E. Patton on the 30th day of November, 1966, at and in said County and State aforesaid did then and there unlawfully, feloniously, forcibly by violence and putting Velma Mood in fear, take from the person and possession of said Velma Mood United States Currency then and there of a value of $54.05 dollars in lawful money, which said money the said Velma Mood then and there lawfully held in her possession and was then and there the property of Velma Mood, while engaged in committing the robbery as aforesaid, did then and there unlawfully and feloniously inflict physical injury, to-wit: a wound in and upon the head of the said Velma Mood with a bludgeon, then and there held in the hand of the said Robert E. Patton, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana (Burns’ Indiana Statutes 10-4101).”

The proof submitted by the State upon trial as above set out was sufficient upon which the jury could find that the bludgeon used by the appellant as alleged in the charge was a bottle of radiator acid, and that the appellant so using the bottle as a bludgeon did, in fact, strike and injure Mrs. Mood. Such a finding by the jury was not only in keeping with the majority opinion in the Short case, but we submit would also overcome the objection made by the dissenting opinion in that case.

From a reading of the statute there can be no doubt but that the legislative intent was to cover all situations in which a person in the act of perpetrating a robbery used an object as a weapon to strike and inflict injury upon the intended victim. No matter what the nature of the object might be, the perpetrator of the offense cannot be heard to say after injury has been so inflicted that the object which he used was not really a bludgeon. It is not the originally intended use of the object or its shape with which we are concerned, but the fact that it was picked up by the hand of the perpetrator and did, in fact, inflict physical injury upon the victim. When this occurs, we hold that a bludgeon has been used.

The appellant next claims that the State failed to prove that money was taken from the person of the complanant, Velma Mood. The testimony was that she removed the money from the cash drawer in the store and placed it in a paper sack for the appellant. This Court has held many times that the taking of money from a cash drawer or other depository in a place of business is tantamount to the taking from the person of the one in charge of the place of business. Finton v. State (1963), 244 Ind. 396, 2 Ind. Dec. 214, 193 N. E. 2d 134.

Appellant next alleges error in the giving of State’s Tendered Instruction No. 10, which instruction is set out in his motion for new trial above quoted, together with the defendant’s objection thereto.

The Court also gave the Defendant’s Instruction No. 9, which was a verbatim reading of Burns’ § 10-4101 the section under which appellant was charged. In submitting both of these instructions to the jury the trial court was not, as claimed by appellant, assuming facts not in evidence, but was merely correctly instructing the jury concerning the law in Indiana. Instruction 10 does not tell the jury that every glass jar is a bludgeon, but states that it may be a bludgeon as that term is used in the statute. Here the jury was instructed that a glass jar may become a bludgeon when in the hands of an assailant it “. . . inflicts any wound or other physical injury upon any person ...”

These instructions when taken in their entirety could not possibly have misled the jury in the face of the evidence in this case.

We find no error in the giving of Instruction 10.

Appellant next claims that the court erred in refusing to give Defendant’s Instruction No. 8, which instruction reads as follows:

“So long as you have a reasonable doubt as to the guilt of the defendant of any of the offenses charged in the affidavits herein, you cannot convict the defendant of' such offense or offenses of which you have a reasonable doubt; and if, you find the defendant guilty, and have a reasonable doubt of which of the offenses charged he is guilty, you should find him guilty only of that offense of which you have no reasonable doubt of his guilt.”

An examination of those instructions given by the court clearly indicates that the subject of reasonable doubt was completely covered and, therefore, there was no error in refusing appellant’s Instruction No. 8.

The court did give appellant’s Instruction No. 7 which reads as follows:

“If after considering all the evidence as a whole, you are convinced of the defendant’s guilt beyond a reasonable doubt and you have a reasonable doubt as to which offense the defendant is guilty of, if any, you should convict him of lower offense only, and as to such offense of which you have no reasonable doubt.”

The court’s Instructions Nos. 2, 6 and 7 and State’s Instruction No. 2 were all given by the court and very thoroughly covered the doctrine of reasonable doubt.

We find no error in refusing to give tendered Instruction No. 8 in that it was substantially covered by the other instructions. Todd v. State (1954), 233 Ind. 594, 122 N. E. 2d 343; Hedrick v. State (1951), 229 Ind. 381, 98 N. E. 2d 906.

For the foregoing reasons we find no merit in the last two grounds assigned in the motion for new trial, that the verdict of the jury is contrary to law or that the verdict of the jury is not sustained by sufficient evidence. When applying the verdict to the facts as above set out, we find nothing contrary to law. We find that there was sufficient evidence upon which the jury could reasonably have found the defendant guilty of the charge of inflicting injury in the perpetrating of a robbery.

The trial court is, therefore, in all things affirmed.

Arterburn and Hunter, JJ., concur; Jackson, J., dissents with opinion in which DeBruler, C. J., concurs.