# Petition — Lee v. Indiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 983

## Text

Upreme Cort, OU.

FILED

80-397 | SEP 12 1980 |

| | MICHAEL RODAK, JR., CLERK |

—w

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1979

NO.

CHARLES LEE, JR.
THOMAS KNIGHT,

DAVE MARTIN,

VERNON CARTER,
LOUIS HOLLINGSWORTH,

Petitioners,
v.
STATE OF INDIANA,

Respondent.

ON WRIT OF CERTIORARI TO
THE COURT OF APPEALS OF INDIANA

PETITION FOR A WRIT OF CERTIORARI

JOHN D. CLOUSE

1004 Hulman Building
Evansville, IN 47708
Telephone: (812) 424-6671
Counsel for Petitioners

Unigraphic, Inc., 1401 N. Fares Ave., Evansville, Ind. 47711, Phone 424-3680

aie
THE QUESTIONS PRESENTED FOR REVIEW
Can the gambling laws of a state be enforced in a deli-
berately discriminatory manner based upon an unjustifiable
standard?

THE PARTIES TO THE PROCEEDING

These are all shown in the caption of the case.

2

TABLE OF CONTENTS

Page
The Questions Presented for Review ................. 1
The Parties to the Proceeding ................ces000- 1
POC COE uk cc cctisb santesasusteieeeee 2
Te OE ROI. oo ob. s'o 0 do's: k oe bbe 3
Reference to the Opinion below ................005. 4
Statement of the Grounds on which the
Jurisdiction of this Court is Invoked ............ 4
Constitutional Provisions and Statutes Involved ........ 4
Sentomment OF UP COND osc ccccccvcestecewesdcuuenal 6
Reasons Relied on for Allowance of the Writ .......... 9
CURIE nic ccccgeccecevesssbbesssenekeeee 14
Appendix A - Opinion and Judgment of the
infiene Court Of AMROUD- «.0.0.0860cevsndeunans 15
Appendix B - Order of the Indiana Court of
Appeals Denying Rehearing .................. 26
Appendix C - Order of the Indiana Supreme
Coust Denging TORU 6c doc ccccvadineveeaas 27

Appendix D - Excerpt from Testimony of
Alan Shuttle, Vice Squad Chief of the
Evansville, Indiana Police Department
on the Hearing on Petitioners’ Motion
PTE ees re re enue 28

*-

TABLE OF AUTHORITIES

Page
Cases:
Fairchild v. Schanke, 232 Ind. 480, 113 N.E.
ee acai oe CEOS bs oA wh ees 10
Lee, et al v. Indiana, 397 N.E.2d 1047 (Ind.
SE 55-66 ewok Dada e kh pans aes 4
United States yv. Alarik, 439 F.2d 1349 (8th
es EE a oh ek ts ke ee Lae eA ds a oere 9
Williams v. Illinois, 399 U.S. 235 (1970) ............. 13
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ....... 7,9,19

Miscellaneous:

Constitution of the United States, 14th Amendment .... 4

pe ee err 6
NE A OIE occ vc ce Vi cbse dbase eeelbes 5,6
Indiana Rules of Appellate Procedure, AP 11(B) ....... 4

po a ok oer ee errr Te ee re eee ee 4

4.
REFERENCE TO THE OPINION BELOW

The opinion of the Court of Appeals of Indiana,
reported at 397 N. E. 2d 1047, appears in Appendix A
hereto.

STATEMENT OF THE GROUNDS ON WHICH
THE JURISDICTION OF THIS COURT IS INVOKED

The judgment of the Court of Appeals of Indiana was
entered on December 18, 1979. (In that court no separate
judgment is entered, the opinion contains it.)

A timely petition for rehearing was denied on January
22, 1980. (Appendix B)

A timely petition to transfer the cause to the Supreme
Court of Indiana was,denied on July 22, 1980. (Appendix C)
The Supreme Court of Indiana is the highest court in that
state having jurisdiction to review decisions of lower state
courts. (Indiana Rules of Appellate Procedure, Rule AP
11(B].)

This petition for a writ of certiorari will be filed within
sixty (60) days of the Indiana Supreme Court’s refusal to
review or “transfer” the decision herein. This Court’s juris-
diction is invoked under 28 U.S.C. $1257(3).

CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
The Constitution of the United States:
14th Amendment:
“* * * No state shall make or enforce any

law which shall abridge the privileges or immuni-
ties of the United States; nor shall any state

me

deprive any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal pro-
tection of the laws.”

The Indiana Code:

*35-45-5-3. Professional gambling. - A
person who knowingly or intentionally :

(1) Engages in pool-selling;
(2) Engages in bookmaking;

(3) Maintains, in a place accessible to the
public, slot machines, one-ball machines or
variants thereof, pinball machines that award
anything other than an immediate and un-
recorded right of replay, roulette wheels, dice
tables, or money or merchandise pushcards,
punchboards, jars, or spindles;

(4) Conducts lotteries, gift enterprises, or
policy or numbers games, or sells chances there-
in;

| (5) Conducts any banking or percentage
games played with cards, dice or counters,
or accepts any fixed share of the stakes there-
in; or

(6) Accepts, or offers to accept, for profit,
money or other property risked in gambling;
commits professional gambling, a class D felony.
{IC 35-45-5-3, as added by Acts 1976, P.L. 148,
85, p. 718; 1977, P.L. 340, 882, p. 1533.]”

-6-
STATEMENT OF THE CASE

The action was instituted by the filing of a multiple
count indictment against the petitioners and another (one
Mike Runau) on the 26th day of July, 1978. (R. 14. Note:
references to the Record of the Proceedings on file in the
Court of Appeals of Indiana will be shown thus “R. a
Included in this indictment were counts charging conspiracy
to commit professional gambling. (R. 24-26)

On August 10, 1978 petitioners filed a motion to
dismiss, raising the federal question here involved. The
motion averred, inter alia:

“1. The information is defective pursuant to I.C.
35-3.1-1-6 in that the statute defining the crime charged
is unconstitutional or otherwise invalid.

‘MEMORANDUM

The statute defining the crime, I.C. 35-45-5-3, both
upon its face and its application herein, violates the following
constitutional provisions:

The Constitution of the United States, the
Fourteenth Amendment, all clauses thereof.

“ee

**3. That said statute under which these Defendants
are charged, and its statutory predecessor, the prior act
defining such offense, have been applied with an “unequal

A.

hand” (see Yick Wo v. Hopkins, 1886, 118 U.S. 556). Defen-
dants aver that such acts have never been applied to religious
organizations nor veterans’ organizations, who openly violate
the terms of the present act and its predecessor act. * * *”
(R. 52-57)

Petitioners introduced evidence in support of this
motion. It established that Catholic Churches, veterans’
organizations and private clubs of Evansville, Indiana, have
for a number of years openly violated the gambling laws
of the State of Indiana with complete impunity. The local
police and prosecutor have known about this for a number
of years, have done nothing about it and do not intend to.

More specifically, the parties stipulated that bingo
was a game of chance. (R. 341) Nine Catholic priests
testified that their churches had conducted regular bingo
games for a number of years. (R. 340, 343, 345, 347, 351,
353, 355, 357, 358) Some had conducted other gambling
enterprises. (R. 351, 359) The gambling was conducted
openly, (R. 342, 344, 346, 348, 352, 354, 355, 357) and
at least one bingo was advertised. (R. 342) No one had
ever been prosecuted or threatened with prosecution because
of this. (R. 341, 343, 346, 348, 352, 354, 355, 3°7)

Private clubs of Evansville also violate the gambling
laws of the state with impunity: The Evansville Country
Club sponsors gambling, including dice games and black-
jack. (R. 335-6, 338) The Evansville Athletic Club has
bingo games. (R. 360) Germania Mannerchor has bingo.
(R. 363) The Eagles’ Country Club has raffles and slot
machines. (R. 365, 366-8) The Haymakers have poker
games and ticket jars. (R. 370) The Shrine has a lottery.
(R. 381) All of these games are conducted openly. (R.
360, 363, 372, 382) No one is ever prosecuted for this.
(R. 338, 360, 363, 368, 372, 382)

Veterans’ organizations are also immune: The V.F.W.
has an open bingo, (R. 373-4) and the American Legion had
slot machines and was not prosecuted. (R. 390-391)

The present prosecutor and three of his predecessors

>

testified that they knew about this gambling, (R. 333, 350,
376, 392) did not prosecute, (R. 332, 350, 376, 394) and
will not: (R. 394)

Alan Shuttle is the present head of the vice squad of
the Evansville Police Department. He has been on the police
force twenty-six years, on the vice squad for twenty-one
and one-half years and been in charge of it for ten years.
(R. 383) He has known about church, veterans’ and private
club gambling for twenty-six years. (R. 384) He added that
the Roman Catholic Diocese of Evansville sponsors a con-
tinuing lottery. (R. 384) None of these offenders has ever
been prosecuted. (R. 386-8) Since some of officer Shuttle’s
testimony is so telling, it is included as Appendix D.

The motion to dismiss was overruled. (R.61) |

Trial to a jury was thereafter had. The facts adduced
at the trial are summarized in the opinion of the Indiana
Court of Appeals. (Appendix A, infra) The jury found
petitioners guilty of two counts (V and VI) of conspiracy
to commit the felony of professional gambling. (R. 67, 78,
79) Thereafter, the court imposed judgment and sentence
upon petitioners: Lee, Knight, Carter and Hollingsworth
were sentenced to two, and Martin one, years imprisonment.
(R. 105-106A)

The petitioners filed a motion to correct errors, the
Indiana prerequisite to an appeal, which again assigned as
error the federal question here urged:

“1. Uncorrected errors of law occurring and properly
raised in the proceedings prior to the trial in this, to-wit:

(a) The Court erred in overruling and denying the
defendant’s motion to dismiss.

Said motion should have been sustained for the reasons
stated therein, which reasons are here adopted by reference,
and for the reason that the evidence introduced in support
of said motion showed that the charges filed against the
defendant were the result of unconstitutionally selective
enforcement of the gambling laws of Indiana in violation of
the Fourteenth Amendment to the Constitution of the

-9-

United States.” (R. 1-2)

This motion was summarily overruled. (R. 117A)

Petitioners appealed to the Indiana Court of Appeals,
arguing the same federal question in their respective briefs.
(Appellant Hollingsworth’s brief, pp. 17-34; the brief of
the other petitioners incorporated Hollingsworth’s argument
by reference, their appellants’ brief, pp. 16-17) The Indiana
Court of Appeals affirmed the petitioners’ conviction after
ordering a correction of their sentence.

Petitioners filed petitions for rehearing which were de-
nied. (Appendix B) They petitioned the Indiana Supreme
Court to review or “transfer” the cause and those petitions
were denied. (Appendix C)

REASONS RELIED ON
FOR ALLOWANCE OF THE WRIT

A state court of last resort has decided a federal ques-
tion in a way in conflict with a decision of this Court.

Yick Wo v. Hopkins, 118 U.S. 356 (1886) is the
seminal case in the area of unconstitutional application of a
law and petitioners rely heavily upon it. However, peti-
tioners believe that a Circuit Court case, United States
vy. Alarik, 439 F.2d 1349 (8th Cir. 1971), correctly sum-
marizes the current state of the law as pronounced by this
Court:

“ * * * 4 prosecutor may exercise discretion
in deciding who should be prosecuted as long
as he does not deliberately discriminate between
persons in similar circumstances based upon
an unjustifiable standard such as race, religion,
or other arbitrary classification. Oyler v. Boyles,
Warden, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.
2d 446 (1961); Yick Wo v. Hopkins, 118 U.S.
356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); * * *”
(Footnote omitted)

-10-

Thus, two questions are posed for petitioners’ answer;
the first: Was there deliberate discrimination? There is
absolutely no doubt that there was. The record fully sup-
ports an affirmative answer to the first question. (See state-
ment of the case and Appendix D) Petitioners will not
belabor that point further, and turn to the second question:
Was the discrimination based upon an unjustifiable standard?

Absent a clear precedent from this Court that question
is likely to be argued on a “yes it was’, “no it wasn’t”
basis. However, the answer is supplied by an unlikely source
- - the Supreme Court of Indiana in the case of Fairchild
v. Schanke , 232 Ind. 480, 113 N.E.2d 159 (1953).

Fairchild is an interesting case and bears reading in
connection with petitioners’ claims of discriminatory en-
forcement. In that case, Schanke, an individual, brought
an injunction action against Frank Fairchild, then prosecutor
of Marion County, Indiana. Schanke alleged that the existing
gambling statutes violated the equal privileges and immunities
provision of Article 1, 823 of the Indiana Constitution in
that they expressly excluded “bona fide religious, patriotic,
charitable, or fraternal clubs.” Upon the granting of a
temporary injunction, Fairchild appealed.

The Indiana Supreme Court upheld the lower court
decision, holding that the distinction made by the legislature
between “bona fide religious, patriotic, charitable, or frater-
nal clubs” and all others “does not rest upon a reasonable
basis and is arbitrary and unreasonable.” Jd. at 493, 113
N.E.2d 159

In its decision, the Court made the following obser-
vations, apropos: to evidence introduced at the hearing on
petitioners’ motion:

“Is there any substantial distinction between
a bona fide religious, patriotic, charitable or
fraternal club seeking and receiving profit from
the conduct of a lottery, the operation of slot
machines, or any other gambling device, and an

-11-

individual, a social club, or professional gambler
who operates a similar lottery enterprise, slot
machines or other gambling devices?

We can see none. Nor has any valid dis-
tinction been pointed out to us by appellants.

Appellants attempt to justify the exclusion
on the ground that the consequences to society
are not the same if the profit from activities
which constitute gambling goes to buy new
athletic equipment for a Sunday School, as if
such profits went to organized gambling. They
further suggest that the threat or danger to
society is different from that posed by pvo-
fessional gambling. This argument was ably
answered by the Supreme Court of New Mexico
in Harriman Institute, etc. v. Carrie Tingley C.C.
Hospital (1938), 43 N.M. 1, 84 P.2d 1088,
when, at page 1091, it said:

*. . . the gambling spirit feeds
itself with as much relish upon a
charity lottery as upon any other
kind. If the average person be
consumed with a desire to take a
chance and get something for
nothing, it matters not to him
whether the promoter makes a
profit or that the profit goes to
charity. Indeed, if it does to do
charity, his participation wears a
cloak of picty otherwise denied
it. He thus may be persuaded to
purchase tickets oftener and in
larger volume because operated in
the name of charity or religion.

-12-

The point we seek to make is that
widespread participation in a chari-
ty lottery is just as baneful in its
effect upon the public as wide-
spread participation in any other
xina of lottery.’

The reasoning employed in the above case
applies with equal force in the case at bar.

“Does the classification here rest upon a
reasonable basis?

The classification attempted in §2 (8) of the
act clearly does not rest upon a reasonable basis
and is arbitrary and unreasonable. The act does
not affect all persons similarly situated. It is
class legislation in the highest degree and con-
travenes §23 of Art. 1 of the Constitution of
Indiana.” Jd. at 489-493, 113 N.E.2d 159.

Consequences of a Favorable Decision

Petitioners are compelled to address the issue of what
a ruling in their favor would mean. Reversing petitioners’
conviction would give the Indiana local prosecutor two
options -- he could enforce the gambling laws uniformly
against individuals and organizations alike, or he could not
enforce the laws against anyone. Reversing petitioners’
convictions must result in a change of policy, as similar
grounds for dismissal will undoubtedly be raised in sub-
sequent gambling prosecutions.

it.

No one would like to see the second approach taken
- - to do so would be a dereliction of duty in the highest
degree. But is the first option equally unfeasible? Would
even-handed and neutral enforcement bring mobs of little
old ladies to the streets in a recurrence of the “bingo riot”
of the 1940’s?

It is submitted that such a disastrous scenerio need
not occur. Full scale raids on religious and social clubs
need not take place in order to eliminate organization spon-
sored gambling. As Appendix D demonstrates, members
of the Evansville police and the local prosecutor’s offices
keep in close communication with such groups, occasio-
nally sending them word to “clean up their act.” A similar
announcement that such activities will heretofore be viewed
as violations of the law, subject to prosecution, would result
in the vast majority of these games being discontinued. Few
priests or club presidents will be willing to risk prosecution
and the publicity it would bring.

If people, then, became unaccustomed to gambling
at these establishments, perhaps it would be possible to
obtain convictions for those who insist on violating the law.
At least the gambling laws would be enforced as written
and as intended by the Federal Constitution.

There is no doubt that a ruling in favor of petitioners
would cause difficulties for the law enforcement officials
in Vanderburgh County. However, as stated by this Court
in Williams v. Illinois:

“We are not unaware that today’s holding
may place a further burden on States in ad-
ministering criminal justice. Perhaps a fairer and
more accurate statement would be that new
cases expose old infirmaties which apathy or
absence of challenge has permitted to stand.
But the constitutional imperitives of the Equal
Protection Clause must have priority over the
comfortable convenience of the status quo.”
399 U.S. 235 at 245 (1970)

-14-
CONCLUSION

For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the Court of Appeals
of Indiana.

Respectfully submitted,

JOHN D. CLOUSE

1004 Hulman Building
Evansville, IN 47708
Telephone: (812) 424-6671
Counsel for Petitioners

-15-
APPENDIX A

OPINION AND JUDGMENT OF THE
INDIANA COURT OF APPEALS

FOR
PUBLICATION
Attorneys for Appellants: Attorneys for Appellee:
JACK N. VanSTONE THEODORE L. SENDAK
THOMAS G. KROCHTA Attorney General of Indiana
103 N.W. Tenth

Evansville, indiana 47708 RICHARD ALBERT ALFORD
(Attorneys for Charles Lee, Jr., Deputy Attorney General
Thomas Knight, Dave Martin,

Vernon Carter, Mike Runau) Office of the Attorney General

219 State House
-JOHN D. CLOUSE Indianapolis, Indiana 46204
MICHAEL C, KEATING
1004 Hulman Building

Evansville, Indiana 47708
(Attorneys for Louis Hollingsworth)

-16-
IN THE
COURT OF APPEALS OF INDIANA

FIRST DISTRICT

CHARLES LEE, JR.,

STATE OF INDIANA,

)
bape noma ) Marjo a
DAVE MARTIN, E20 52.
VERNON CARTER, DEC 18 1979
LOUIS HOLLINGSWORTH, ) Rcanyrdrcahnonet
MIKE RUNAU, ) Indiana Supreme and
) Court of Appeals
Defendants-Appellants, )
)
-v- ) NO. 1-579 A 133
)
)
)
)

Appellee-Plaintiff.

APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable William H. Miller, Judge

Neal, J.

Defendants-appellants Dave Martin (Martin), Thomas
Knight (Knight), Vernon Carter (Carter), Charles Lee, Jr.
(Lee), Louis Hollingsworth (Hollingsworth), and Mike Runau
(Runau) were convicted of conspiracy to commit professio-
nal gambling,

of?
They raise the following issues for our review:

(1) Whether the trial court erred in overruling the
defendants’ motion to dismiss.

(2) Whether the trial court erred in denying the
defendants’ motion for separate trials.

(3) Whether the trial court erred in admitting evi-
dence relating to the charges without limitation
as to the time of the occurrences.

(4) Whether there was sufficient evidence intro-
duced at trial to sustain the verdict of the jury.

(5) Whether the trial court erred in denying defen-
dants’ motion to correct judgment.

We affirm.

The evidence most favorable to the State discloses
that Knight operated a tavern in Evansville by the name of
“Knight’s Nite Spot.” In a room in the rear of the same
building gambling operations were conducted. The room
was equipped with a modified pool table upon which dice
was played. A blackjack table, with high stools around it
upon which the customers could and did sit, was provided.
Food, beer, and coffee were served without charge to custo-
mers and persons in attendance. Admittance was gained
to the room by pressing a buzzer, whereupon a door atten-
dant would then scrutinize the person seeking admittance
through a peephole before allowing him to proceed. One
doorkeeper, employed by Knight, testified that it was his
duty to attend the door, to keep out undesirables, and to
watch for the police. Blackjack and dice were played for
money, some customers winning or losing as much as $500
in a single evening. Customers played the house, not each

-18-

other. Payroll checks were cashed. Chips, in varying deno-
minations from one dollar to twenty-five dollars, were sold
to customers by attendants, and thereafter cashed, if any
remained, at the close of play.

All of the defendants participated in one way or the
other in the management and operations of the enterprise.
Their duties varied, depending upon who was available, or
working, and according to the exigency of the situation.
They sold and cashed chips, were stickmen, attended the
door, dealt cards, or acted in a supervisory capacity.

The room was maintained for gaming purposes for
as much as two years continuously in Knight’s Nite Spot,
terminating there sometime in 1977. Thereafter, it was
reestablished in what was described as the antique shop
at 1021 Kentucky Avenue, just down the alley from Knight’s
Nite Spot. The new location, owned by Hollingsworth, was
an 6id residential building. There, the gaming operation
was renewed in the same manner as before, with all defen-
dants participating as before. Operations, so far as the record
discloses, terminated on January 13 or 14, 1978, when
police officers began surveillance of the house.

Upon discovery of the police activity, the doorman
alerted Knight, whereupon the games were stopped, and
the equipment hidden. Some of the customers and some
defendants stayed ‘in the house the remainder of the night
and into the next day, apparently to avoid detection. Police
surveillance detected nine cars parked outside, and further
detected numerous people entering and leaving the suspected

premises.

Defendants argue that the trial court erred in over-
ruling their motion to dismiss which stated that their pro-
secution was a result of selective and discriminatory enforce-
ment of the gambling laws of Indiana. The gist of the defen-

-19-

dants’ argument is that while gambling laws were enforced
against them, religious, social, and veterans organizations
were allowed to conduct gambling operations without
prosecution. Citing Yick Wo v. Hopkins, (1886) 118 US.
356, 6 S.Ct. 1064, 30 L.Ed. 220, they argue that they were
denied equal protection of the law as guaranteed by the
Fourteenth Amendment to the Constitution of the United
States and Articel 1, § 23 of the Constitution of Indiana.
Yick Wo is distinguishable from the case at bar in that it
dealt with discriminatory enforcement of a city ordinance
against a readily identifiable class, but the defendants before
us are not part of a particular group which was singled out
for prosecution.

In Highland Sales Corp. v. Vance, (1962) 244 Ind.
20, 186 N.E.2d 682, our Supreme Court dealt with an
action by a department store and its employees who sought
to enjoin the enforcement of a law which prohibited the
operation of the store on Sunday. The appellants claimed
that they were denied equal protection since other businesses
such as drug stores, gasoline stations, and restaurants were
allowed to operate on Sundays. The court stated that the
failure to prosecute some who violate the law does not
excuse violations by others, nor should it bar their prosecu-
tion. Also, there was no personal animosity which supported
the discrimination argument.

Noting the judiciary’s role in relation to a prosecuting
attorney’s discretionary power, the court said, at 889:

“We do not minimize the duty of the pro-
secuting attorney to exercise the power of his
office fairly and in good faith. However, in
order to warrant judicial interference with the
office of the prosecuting attorney because of
either nonfeasance or malfeasance, it must be
made to appear from the facts alleged that such
misconduct consists of a grc2s and intentional
failure or refusal to enforce the law in some

-20-

major area or that such misconduct is act-
ually the product of bad faith or evil design.”
(Emphasis added.)

In light of the heavy case load facing a prosecuting attorney,
it is clear that the failure to prosecute charitable organiza-
tions in no way establishes that the defendants were denied
equal protection. The State showed that there was a rea-
sonable basis for the way the gambling laws were enforced

Hollingsworth and Runau allege that the trial court
erred in denying their motions for separate trials pursuant
to IND. CODE 35-3.1-1-11 (Supp. 1979) which were filed
on the morning of the trial. The statute reads as follows:

“‘(a) Whenever two (2) or more offenses have
been joined for trial in the same indictment or
information solely on the ground that they are
of the same or similar character, the defendant
shall have a right to a severance of the offenses.
In all other cases the court, upon motion of the
defendant or the prosecutor, shall grant a
severance of offenses whenever the court deter-
mines that severance is appropriate to promote
a fair determination of the defendant’s guilt or
innocence of each offense with a view to the
number of offenses charged, the complexity of
the evidence to be offered, and whether the
trier of fact will be able to distinguish the
evidence and apply the law intelligently as to
each offense.

(b) Whenever two (2) or more defendants
have been joined for trial in the same indictment

-21-

or information and one (1) or more defendants
move for a separate trial because another defen-
dant has made an out-of-court statement which
makes reference to the moving defendant but
is not admissible as evidence against him, the
court shall require the prosecutor to elect either:

(1) a joint trial at which the statement is
not admitted into evidence;

(2) a joint trial at which the statement is
admitted into evidence only after all references
to the moving defendant have been effectively
deleted; or

(3) granting the moving defendant a separate
trial.

In all other cases, upon motion of the defendant
or the prosecutor, the court shall order a se-
parate trial of defendants whenever the court
determines that a separate trial is necessary to
protect a defendant’s right to a speedy trial or
is appropriate to promote a fair determination
of the guilt or innocence of a defendant.

(c) When such information would assist
the court in ruling on a motion for a separate
trial, the court may order the prosecutor to
disclose to the court in camera any statements
made by the defendants whicn the prosecutor
intends to introduce in evidence at the trial.”
(Emphasis added.)

Defendants argue that part (a) gives them the right for
separate trials. However, part (a) deals with severance of
offenses, not separate trials. Defendants did not ask for

2>

severance of offenses. The statutory language emphasized
above is the relevant language here, and it states that the
granting of separate trials is at the discretion of the trial
court. In a denial of a motio:: for separate trials, there
is reversible error only when there is a clear showing that
the trial court abused its discretion. McFarland v. State,
(1977) Ind. App., 359 N.E.2d 267.

When a pretrial motion for separate trials is over-
ruled any error is deemed waived by failure to renew the
motion before or at the close of all the evidence. IND.
CODE 35-3.1-1-12(b). We find no indication that Hollings-
worth and Runau renewed the motion, and thus, they
waived their right to separate trials.

Defendants argue next that the trial court erred by
admitting testimony that went beyond the time frame of
the statute of limitations. Defense counsel objected to testi-
mony by L. P. Dallas and Sidney Gynn concerning the times
when they participated in gambling activities. In both
instances, the record shows that immediately after the
objection was overruled, the prosecution pinpointed the
time in question which was within the statute of limitations.

IV.

The sufficiency of the evidence is also challenged by
the defendants. When we review the sufficiency of the
evidence, we consider only that evidence of probative value
most favorable to the State, together with reasonable in-
ferences which may be drawn therefrom. We will not disturb
a verdict if the evidence and inferences would permit the trier
of fact fo find the existence of the elements of the crime
beyond a reasonable doubt. Diggs v. State, (1977) Ind.,

-2%

364 N.E.2d 1176.

In Duling v. State, (1976) Ind. App., 354 N.E.2d
286, Judge Lowdermilk noted the factors which constitute
a conspiracy, at 289:

“In order to be a conspiracy there must be
an intelligent and deliberate agreement to com-
mit the offense charged. It is sufficient if the
minds of the parties meet understandingly to
bring about an intelligent and deliberate agree-
ment to do the acts and commit the offense,
though the agreement is not manifest by any
formal words. Concurrence of sentiment and
co-operative conduct in the unlawful and crimi-
nal enterprise are the essential ingredients of
criminal conspiracy. There must be an agree-
ment and there must be evidence to prove the
agreement directly, ro such a state of facts
that an agreement may be legally inferred.
Conspiracies cannot be established by a mere
suspicion. Evidence of mere relationship of
association between the parties does not show
a conspiracy.” (Citation omitted.)

He also said that an agreement need not be directly proven,
but it may be inferred from other facts.

_ The conspiracy statute, IND. CODE 35-41-5-2, reads,
in pertinent part:

“(a) A person conspires to vommit a felony
when, with intent to commit the felony, he
agrees with another person to commit the
felony....

(b) The state must allege and prove that
either the person or the persons with whom he
agreed performed an overt act in furtherance of

the agreement.”

IND. CODE 35-45-5-3 (Supp. 1978), the Indiana pro-
fessional gambling statute reads as follows:

“A person who knowingly or intentionally:

(1) engages in pool-selling;

(2) engages in bookmaking;

(3) maintains, in a place accessible to the e
public, slot machines, one-ball machines or
variants thereof, pinball machines that award
anything other than an immediate and un-
recorded right of replay, roulette wheels, dice
tables, or money or merchandise pushcards,
punchboards, jars, or spindles;

(4) conducts lotteries, gift enterprises, or
policy or numbers games, or sells chances there-
im,

(5) conducts any banking or percentage
games played with cards, dice, or counters, or
accepts any fixed share of the stakes therein; or

(6) accepts, or offers to accept, for profit,
money or other property risked in gambling;

commits professional gambling, a class D felony.”

Testimony of the State’s witnesses at trial showed that
the defendants worked together in conducting the gambling
operation by selling and cashing chips, working as stickmen
in the dice game, or dealing blackjack. From this testimony
the jury could reasonably infer that the intent, agreement,
and overt act required by IND. CODE 35-41-5-2 took place
and were supported by sufficient evidence.

25-
V.

Defendants also contend that the trial court erred by
denying the defendants’ motion to correct judgment in which
they argued that the jury’s verdict was inconsistent. Defen-
dants were found guiity of the conspiracy charges, but the
jury failed to return a verdict regarding the substantive
offenses which were charged.

In providing a conspiracy, it is not necessary to prove
that the object of the conspiracy has been carried out. Bates
v. State, (1977) Ind., 366 N.E.2d 659. Once the conspiracy
has been established, we need not address the substantive
offense. In Bates, supra, there was evidence tending to
show murder and evidence tending to show conspiracy to
commit murder. The defendant was convicted upon the
conspiracy county. The court held that under the standard
of review such a verdict is not objectionable.

One matter remains though not raised in the briefs,
that of the sentencing. Three defendants, Knight, Hollings-
worth, and Carter, were each convicted on Count V and
Count VI of the indictment. The imposed sentence was
one general sentence to each defendant, and the trial court
did not designate whether the sentence was imposed on
Count V or Count VI. The trial court is directed to correct
the sentence and sentence and/or dispose of each count
separately. For the reasons stated above the decision of
the trial court must be affirmed upon correction of the
sentencing as directed.

Affirmed and remanded for correction of sentence.

LOWDERMILK, P. J. and ROBERTSON, J. CONCUR.

-26-
APPENDIX B

ORDER OF THE INDIANA COURT OF APPEALS
DENYING REHEARING

IN THE
COURT OF APPEALS OF INDIANA

FIRST DISTRICT

CHARLES LEE, JR., et. al.
Defendants-Appellants
vs. NO. 1-579 A 133

STATE OF INDIANA
Appellee-Plaintiff

Nee Ne Ne ee ee ee”

Appellant Louis Hollingsworth Petition for Rehearing Denied.
Buchanan, C. J.

Appellants Charles Lee, Jr., Thomas Knight, David Martin,
Vernon Carter and Mike Runau Petition for Rehearing
Denied.

Buchanan, C. J. (sic)
January 22, 1980

OF
APPENDIX C

ORDER OF THE INDIANA SUPREME COURT
DENYING TRANSFER

IN THE

SUPREME COURT OF INDIANA

CHARLES LEE, JR., et. al.
Defendants-Appellants

vs. NO. 1-579 A 133

STATE OF INDIANA
Appellee-Plaintiff

Nee Ne Ne ee ee Se

Appellant, Louis Hollingsworth’s, Petition to Transfer is Denied.

Given, C. J. All Justices Concur.

Appellant, Lee, Knight, Martin, Carter and Runau, Petition to
Transfer is Denied.

Given, C. J. All Justices Concur. (sic)
July 22, 1980

-28-

APPENDIX D

Excerpt from testimony of Alan Shuttle, vice squad
chief of the Evansville, Indiana Police Department on the
hearing on petitioner’s motion to dismiss.

“Q.

Can you tell why you have not, that is ask (sic)
for the prosecution of any religious, veterans or
private organization engaged in gambling?

Well, with every chief and probably every Pro-
secutor we’ve had all the years I’ve been here,
I’ve discussed it with them. And after a dis-
cussion, we always felt like if we didn’t get too
many complaints on them or anything, we just
didn’t get too worried about them; and I’ve had
very few .complaints over the years on clubs,
churches.

And in other words then as I understand your
testimony, during your twenty-one years as
tenure on -- during your twenty-one years on
the vice squad you have met with the respective
chiefs of police and the prosecuting attorneys
through the years, and you’ve all agreed that you
would not prosecute religious organizations,
veterans’ organizations, and private clubs for any
gambling activities?

Well, no, not exactly that way unless we got
repeated complaints, then we probably would
have took some action, which we never did get
repeated complaints. We got a complaint on
somebody why we talked to them about it, and
usually that’s the last we ever heard of it, but if
it would have kept coming back to us why I
believe somebody probably would have got
prosecuted.

-29-

Okay, then if I understand your position is that
again, you during your tenure on the vice squad,
that you and the chief of police and the respec-
tive Prosecutors would agree that you would not
prosecute any religious, veterans, or private
organizations for gambling unless you got too
many complaints would that be correct?

That’s about right.

And when you got too many complaints, you
would go and give them a talking to?

Well, they usually got talked to on the first
complaint.

And what kind of talks were they?

Well, we have an understanding with the Council
of Clubs that we have a committee of three mem-
bers from the Council of Clubs, that way I can
always reach somebody if we do get a complaint.
And that’s usually my first step if I get a com-
plaint on a club, I will contact one of those mem-
bers and explain to them what we have and tell
them I don’t want to hear anymore about it, if
I do, then I will be out; and I never had to go
back out.

Okay, now what is the Council of Clubs, Sergeant
Shuttle?

It’s a sort of a governing body I suppose with all
the clubs in it or most of the clubs, I won’t say
all of them, most of the clubs probably in Van-
derburgh County. I don’t really know.

0 > © >

-30-

That is that would not be -- they would have
no jurisdiction over a religious club for instance?

I don’t really know. I don’t think so.
Or a veterans’ club?
Yes, I believe they do over a veterans’ club.

And then what kind of complaints are you
talking about, does someone complain that they
were gambling?

Somebody called in and complained that their
husband was gambling at a club or somebody
had lost some money there or somebody didn’t
get paid far winning or something like that why
they would complain to me, and then I would
contact - -.

Well, what would you tell the club then to do
or not do after you went to them?

I would just tell them to satisfy the complaint or
stop it or whatever it took. I just told them I
didn’t want to hear anymore about it, if I got
anymore complaints, I would be out.

And you did this a number of times?
Oh, yes.

In other words if some wife felt her husband was
blowing all his money at the VFW or someone
felt the game was crooked you’d go and tell
them, that particular club, that you didn’t want
to hear anymore about it?

$i.
That’s right.

After any of these talks, did you ever ask that
any of these clubs be prosecuted?

No, I don’t believe so.

So, in all your twenty-one years none of these
particular types of clubs which you talked about
veterans, private, religious, have been prosecuted
for gambling law violations?

Not to my knowledge. I don’t believe there has.”
(Direct examination on hearing on motion to
dismiss, R. 385-388)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0416%3A1. Public record. Not legal advice.