Payton v. State

Arterburn, C. J.

The appellant was charged with and convicted of robbery, and appeals, contending that the evidence is insufficient to sustain the verdict and that certain instructions were erroneously refused. It is specifically urged that the evidence was insufficient in that it failed to show that the victim was robbed “by putting in fear” at the time of the alleged crime.

It is unnecessary for us to set out the entire statute upon which the charge is predicated, but we do point out that the statute (Burns’ Ind. Stat. Anno. §10-4101 [1956 Repl.]) provides that the crime charged consists of the taking of property “ ... by violence or by putting in fear,...”

For this purpose we must briefly review the evidence. It shows that the prosecuting witness, a Mrs. Gertrude Kinsey, alias Woods, testified that on the afternoon of January 9, 1963 she was in a tavern in South Bend, Indiana and while drinking beer in a booth with another woman, one Hilroy came over and asked her for a dime. Thereupon the appellant came over to Mrs. Kinsey and objected to her offering to give money to another man and stated “. . . you don’t give me no money to get my clothes out.” The evidence further shows that he was angry at the time and he returned and hit Mrs. Kinsey. She states she knew nothing more until she woke up in the hospital, and she had thirty-seven stitches in her forehead and her billfold containing approximately $65.00 was missing out of her coat pocket.

The evidence reveals from other witnesses that the appellant reached in her coat pocket after hitting her and took her pocket book. The appellant admitted to a police officer he struck Mrs. Kinsey and stated he “really worked her, Gertrude over.”

. It is .appellant’s contention that there is not enough evidence here to show that Mrs. Kinsey was “put in fear.”

The testimony shows that appellant had a menacing attitude and was angry when he first asked for the money from Mrs. Kinsey before he hit her, although Mrs. Kinsey was not aware at the time that he was going to hit her.

The evidence further shows that the appellant and Mrs. Kinsey had engaged in a number of fights while living together from April, 1959 to 1961. While living together in 1959 he had tried to get money from Mrs. Kinsey and she had refused and he had hit her with a glass, putting one of her eyes out. The evidence further shows that on another occasion she stabbed him with an ice pick. She testified that the appellant would fight her for money when he was drinking and ran out of money. She stated appellant, after putting her eye out, didn’t take any money from her because “I wouldn’t give it to him.”

With a history of fighting over money between the two, the jury had sufficient evidence to believe that she would be put in fear upon his asking for any money from her.

“ ‘ . . . Actual fear need not be proved, as a legal presumption of fear will arise from facts clearly indicating a cause therefor.’ ” Koby v. State (1935), 209 Ind. 91, 97, 198 N. E. 88, 90.

We have held that fear, as used in the robbery statute, is, in reality, constructive violence. We have said:

“No contention is made that actual violence was used by appellant in commission of the alleged robbery, but it was accomplished by putting McCauley in fear, which the law considers as constructive violence.” Cross, Jr. v. State (1956), 235 Ind. 611, 614, 137 N. E. 2d 32,33.

The jury’s verdict in this case found the defendant guilty of “Robbery by Putting in Fear”, and it is contended the specific verdict must be supported by some evidence of fear. In our opinion it is. However, we may note that words added to a verdict of a jury are surplusage unless they are inconsistent therewith, and should be given no consideration otherwise. Burnett v. State (1954), 233 Ind. 651, 122 N. E. 2d 468; Moore v. State (1947), 225 Ind. 357, 75 N. E. 2d 193; Switzer v. State (1937), 211 Ind. 690, 8 N. E. 2d 80; Steinbarger v. State (1948), 226 Ind. 598, 82 N. E. 2d 519.

In our opinion, the evidence amply supports the verdict of the jury by showing that the property was taken by violence and by putting the victim in fear.

It is next argued that the appellant was too intoxicated to have any intent to commit the crime. However, the appellant was arrested shortly after the commission of the crime and police officers testified that he was quite coherent and understood what he had done. Where the evidence is conflicting, the jury’s verdict will not be disturbed. Wagner v. State (1963), 243 Ind. 570,188 N. E. 2d 914.

Error is claimed by the appellant because of the court’s refusal to give tendered instructions 5, 6 and 8. The defendant’s tendered instruction 5 is not specified in either the original motion or amended motion for a new trial as error, and is therefore waived. Instructions 6 and 8 are based upon the assumption that Gertrude Kinsey, alias Woods, was the common-law wife of appellant. The evidence will not support such instructions. It is quite plain that Mrs. Kinsey at the time was legally married to another man, although the evidence does show she was living with the appellant. Such instructions would also be improper in face of the statute outlawing common-law marriages subsequent to January 1,1958.

Burns’ Ind. Stat. Anno. §44-111 (1964 Supp.)

The court committed no error in refusing the instructions.

The judgment of the trial court is affirmed.

Myers and Landis, JJ., concur.

Achor, J., dissents with opinion, in which Jackson, J., concurs.