McGowan v. State

355 N.E.2d 276, 171 Ind. App. 153, 1976 Ind. App. LEXIS 1071

Opinions

White, J.

Appellant McGowan appeals from his conviction of armed robbery, contending that the evidence is insufficient to prove an essential element of the crime, i.e., that he was over sixteen (16) years of age when the crime was committed. A thorough search of the trial transcript reveals no evidence of McGowan’s age. Thus an essential element of armed robbery was not proved. Watson v. State (1957), 236 Ind. 329, 333, 140 N.E.2d 109, 110.

Impliedly conceding the failure of proof, the State argues, first, that the issue was waived since it was not specifically presented in the motion to correct errors and, second, that the pre-sentence investigation report indicates that McGowan is over sixteen. The first argument overlooks Trial Rule 50(A)(5) which provides that in a criminal case insufficiency of the evidence can be raised initially on appeal. Johnson v. State (1975), 167 Ind. App. 292, 338 N.E.2d 680, 682. The second argument ignores the basic principle of law that a defendant can be convicted only on the evidence presented at trial. Hardin v. State (1973), 260 Ind. 501, 502, 296 N.E.2d 784,

The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.

Robertson, C.J., participating by designation, concurs; Sullivan, J., concurs with opinion.