Arbuckle v. State

364 N.E.2d 772, 173 Ind. App. 529, 1977 Ind. App. LEXIS 895
CourtIndiana Court of Appeals
DecidedJuly 12, 1977
DocketNo. 2-975A252
StatusPublished
Cited by2 cases

This text of 364 N.E.2d 772 (Arbuckle v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arbuckle v. State, 364 N.E.2d 772, 173 Ind. App. 529, 1977 Ind. App. LEXIS 895 (Ind. Ct. App. 1977).

Opinions

STATEMENT OF THE CASE

Lowdermilk, J.

This case was transferred to this office from the Second District, in order to help eliminate the disparity in caseloads among the Districts.

Defendant-appellant Arbuckle appeals from a conviction for the commission of a felony while armed, to wit: robbery.

We affirm.

FACTS

At 3:20 a.m. on November 24, 1974 Melvin B. Herman closed his business establishment and drove with a companion to the . Waffle House restaurant at the intersection of West 30th and Georgetown Road in Indianapolis. Upon leaving the car Herman and his companion were approached by the defendant Arbuckle. Arbuckle removed a large pistol from beneath his jacket, pointed it at Herman, and ordered the men to move across the parking lot. Part of the way across the lot Arbuckle yelled, “God dammit, hurry up,” and he fired a shot into the pavement. He then took Herman’s wallet which contained identification papers, credit cards, and between four hundred and five hundred dollars in cash. Arbuckle escaped in a maroon 1973 or 1974 Ford.

Five days later Arbuckle was apprehended in a car fitting the description of the getaway car. At that time he had in his possession certain articles which bore Herman’s name. Herman later identified these articles as his and also identified Arbuckle as the man who robbed him.

ISSUES

1. Was the evidence submitted at trial sufficient to convict the defendant of the commission of a felony while armed, to wit: robbery ?

[531]*5312. Did the court err in not instructing the jury about certain lesser included offenses for which the defendant tendered instructions ?

3. Did the court err in seating the trial jury:

a. by selecting the jurors for this trial from among the members of a much larger regular panel of jurors, and
b. by allowing members of the large regular panel to serve on more than one trial jury during a calendar year?

DISCUSSION AND DECISION

Issue One :

Arbuckle contends that the evidence presented at trial was insufficient to support his conviction. He points out that a mug shot taken of him shortly after his arrest on November 29, 1974 shows that he had a small growth of chin whiskers just below his lip. Herman saw no chin whiskers on the person who robbed him. Nevertheless Herman, identified Arbuckle as the man who committed the robbery. Arbuckle contends that Herman’s failure to notice any chin whiskers on the person who robbed him indicates that he was not the man and that Herman’s identification of him was not properly made.

Arbuckle also points out that the signature on a receipt from one of the stolen credit cards was found to be neither his nor Herman’s. He contends that this evidence would indicate that some other person had stolen and used the credit • card.

In reviewing the sufficiency of the evidence on appeal this court will not weigh the evidence nor resolve the question of credibility of witnesses, but will look to the evidence most favorable to the state and the reasonable inferences therefrom which support the verdict of [532]*532the jury. See Stiles v. State (1973), 156 Ind. App. 675, 298 N.E.2d 466.

The evidence most favorable to the state reveals that at gunpoint Herman was forced to give Arbuckle his wallet containing identification papers, credit cards and money which were later found on Arbuckle when apprehended. Arbuckle was identified by Herman as the person who robbed him. Any ambiguities in the evidence, such as those alluded to above by the defendant, were resolved by the jury in favor of the state. As such we find that there was sufficient evidence of probative value upon which the jury could reasonably infer the defendant’s guilt.

Our determination that there was sufficient evidence upon each element of the crime charged disposes of Arbuckle’s contentions that the judgment was contrary to law and the trial court erred in not granting his motion for a judgment on the evidence. Further Arbuckle’s last two contentions were waived by his failure to cite this court any legal authority in support thereof. Ind. Rules of Procedure, Appellate Rule 8.3(A) (7).

Issue Two :

Arbuckle has waived the right to present this issue on appeal for the reason that he failed to include a verbatim presentation of the disputed jury instructions in the argument portion of his brief. AP. 8.3(A) (7).

Issue Three:

Arbuckle contends that the large regular panel of jurors from which the trial jury is chosen is greater than that which is authorized by statute. He contends that the regular jury panel should consist of twelve persons. To support his argument he cites IC 1971, 35-1-30-1 (Burns Code Ed.) which provides: .

[533]*533“. . . The petit or trial jury used in civil cases shall act also in criminal cases, but shall consist of twelve (12) qualified jurors; and where a jury trial is demanded, the sheriff shall call a jury in the manner prescribed by law or as directed by the court. . . .”

He also cites Benadum v. State (1914), 182 Ind. 510 at 513, 107 N.E. 8 wherein the court said:

“. . . The statutes governing the drawing and impaneling of jurors in criminal trials do not contemplate that the regular panel shall at any time be made up of more than twelve jurors and it may not lawfully contain a greater number. . . .”

Some confusion has arisen over what constitutes a jury panel. Arbuckle would have us believe that the regular jury panel is the group of twelve persons which constitutes the petit or trial jury, and he cites Benadum, supra, to support his assertion. He is correct to the extent that the trial jury is a panel or group of twelve jurors. However, we construe the term jury panel, as used in the pertinent statutes, to mean a large regular pamel of jurors from which the trial jury panel is chosen. This construction becomes obvious when the statutes which pertain to the jury selection system are examined. IC 1971, 33-4-5-1 (Burns Code Ed.) provides:

“The circuit court shall, during the month of November, appoint for the next calendar year two [2] persons, at least one [1] of whom shall be a resident of the town or city in which the court shall be held, as jury commissioners, who shall be freeholders and voters of the county, well known to be of opposite politics, and of good character for intelligence, morality and integrity, and cause them to appear and take an oath or affirmation in open court, to be entered of record in the order-book of the court . . .” (Our emphasis)

IC 1971, 33-4-5-2 (Burns Code Ed.) provides:

“Said commissioners shall immediately, from the names of legal voters and citizens of the United States on the latest tax duplicate and the tax schedules of the county, examine for the purpose of determining the sex, age and identity of prospective jurors, and proceed to select and [534]*534deposit, in a box furnished by the clerk for that purpose, the names,

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Related

Dancey v. Stroud
580 N.E.2d 332 (Indiana Court of Appeals, 1991)
Arbuckle v. State
364 N.E.2d 772 (Indiana Court of Appeals, 1977)

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Bluebook (online)
364 N.E.2d 772, 173 Ind. App. 529, 1977 Ind. App. LEXIS 895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arbuckle-v-state-indctapp-1977.