Public-domain · open source
OpenJurist

246 Ind. 23

201 N.E.2d 333

Hardin v. State

Indiana Supreme Court

Decided October 5, 1964

Indiana Supreme Court · decided 1964-10-05

Cited by 21 later decisions — most recently August 1979

21 state decisions

Key passage — most relied on by later courts

“"Comes now the defendant, by counsel, and moves the Court to grant him a new trial herein for the following reasons: 1. Irregularities in the proceedings of the Court and orders of the Court and abuse of discretion by which the defendant was prevented from having a fair trial, in this, to-wit: a. The Court erred in failing to give defendant's tendered Preliminary Instruction number 1. b. The Court erred in failing to give defendant's tendered Prelminary Instruction number 2. c. The Court erred in overruling the defendant's motion for a continuance of said cause. d. The Court erred in denying the defendant's Motion for a directed verdict at the close of the State's case in chief. e. The Court erred in denying the defendant's Motion for a directed verdict at the close of all of the evidence given in said cause. 2. That the verdict of the jury is not sustained by sufficient evidence. 3. That the verdict is contrary to law. WHEREFORE, defendant prays the Court to grant a New Trial herein." "MEMORANDUM The Court erred in failing to give defendant's tendered Preliminary Instructions 1 and 2 in that these instructions were the latest expression of the Indiana General Assembly concerning the punishment for second degree murder and manslaughter. Chapter 95 of the Acts of the Indiana General Assembly, 1969, approved by the Governor on March 8, 1969 changes the existing penalty for second degree murder and provides for an alternative penalty of either life or imprisonment for not less t”

quoted by 1 later decision, including Bash v. State

Relies on Warren v. State · State v. Torphy · Jones v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1964-10-05

View the full empirical analysis of this case →

Landis, J.

¶1Appellant was charged by affidavit in three (3) counts with: (1) robbery, (2) grand larceny, and (3) automobile banditry. After a trial by jury appellant was convicted of grand larceny and automobile banditry and was fined in the sum of $500.00 and sentenced for a term of one (1) to ten (10) years in the Indiana State Prison. This appeal followed the overruling of his motion for new trial.

¶2*25Appellant first contends the jury’s verdict is not sustained by sufficient evidence.

¶3The evidence favorable to the state is that Frank Ebner, an employee of the Marion County Treasurer’s office, on February 2, 1962, at about 9 a.m. was walking in the city of Indianapolis to the bank to deposit certain checks and cash receipts from the treasurer’s office when he was accosted by two men. Ebner testified one of the two men jerked the black grip, which contained the money and checks, out of his hand and that as he was pulled around by the force of the jerk he saw two men running down the parking lot toward Virginia Avenue.

¶4Larry Storms, a parking lot attendant, stated that on February 2, 1962, at about 9 a.m. he saw appellant and another man run through the parking lot (the same lot the witness Ebner saw the men running through), and that appellant was carrying a black bag under his coat. He identified appellant in the court room as the man running through the parking lot with the bag. He also testified they ran down the alley, got into a car and drove away.

¶5Rosie McDuff testified she saw appellant at her house on February 2, 1962, with what appeared to be a bag under his arm. She further stated that when appellant saw the police coming, gave her money that was bound with a rubber band.

¶6There was further evidence from officer Davenport as to appellant’s oral confession of the crime wherein appellant allegedly stated that George Sneed and Bad Foot Stanley (Rutland) participated with him in the robbery of Frank Ebner of February 2, 1962; that it was not appellant’s idea to commit the robbery but that he was more or less called in to help; that Rosie McDuff didn’t have anything to do with it but that she was not telling all the truth as she knew they divided *26that money out at her house because they gave her $10.00 apiece and the bag and checks were burned out at her house. When questioned as to who snatched the bag, appellant stated Sneed was with the car and that he (appellant) snatched the bag, that (Stanley) Rut-land was with him and they cut back through the lot toward the car in which they proceeded by devious route to Rosie McDuff’s place where they divided the money and split up.

¶7Appellant has contended that the evidence is insufficient as it failed to show that he had the exclusive possession of the stolen property. While this may be an element of circumstantial evidence cases, it is not here applicable as the instant case was not predicated solely on circumstantial evidence. The testimony of witness Storms only moments after the crime was committed was to the effect he saw appellant running through the parking lot with a black bag, and such evidence is further supported by appellant’s uncontradicted confession. It appears therefore that the fact circumstantial evidence was relied upon to establish appellant’s possession of the stolen goods is not here a decisive matter, as appellant’s guilt was shown by his own confession, which was direct evidence. Evans v. State (1927), 199 Ind. 55, 63, 155 N. E. 203, 205.

¶8There is further no showing in this case that the confession was made under inducement, but even if such showing had been made it would not avail appellant as there was sufficient proof of the corpus delicti to sustain such a confession (i.e., a showing that a crime of the nature and character of that charged had been committed by someone). See: Holding v. State (1963), 244 Ind. 75, 78, 190 N. E. 2d 660, 662.

¶9*27*26Appellant contends the evidence is further insuffi*27cient as it appears from the State’s evidence that appellant could not drive an automobile. This con-tention could not of course affect appellant’s sentence of one to ten years on the grand larceny charge as such conviction is not dependent upon the allegation as to an automobile and there was no additional sentence for auto banditry here imposed. However, neither is the contention meritorious as to the conviction for auto banditry in this case as an accessory to auto banditry could not be made dependent upon his ability to act as a principal and to operate a motor vehicle. See: Burns’ §9-102 (1956 Repl.), Acts 1905, ch. 169, §224, p. 584; Ard v. State (1958), 238 Ind. 222, 225, 149 N. E. 2d 825, 827; McCoy et al. v. State (1958), 237 Ind. 654, 658, 148 N. E. 2d 190, 192.

¶10Appellant has further contended the court erred in overruling the motion for a directed verdict at the close of all the evidence but this contention is refuted by the foregoing discussion showing the verdict for appellee to be sustained by sufficient evidence. There was no total absence of evidence upon some essential issue required to support appellant’s conviction, nor is this a case where there is no conflict in the evidence and it is susceptible of but one inference which is in favor of the accused. See: State v. Patsel (1960), 240 Ind. 240, 245, 163 N. E. 2d 602, 604; State v. Torphy (1940), 217 Ind. 383, 388, 28 N. E. 2d 70, 72; State v. Kubiak (1936), 210 Ind. 479, 480, 4 N. E. 2d 193.

¶11Appellant has contended the court erred in refusing to give two instructions tendered by appellant upon the subject of circumstantial evidence. The subject of these instructions however, was substantially covered by the court’s instruction No. 34, and therefore no error was committed by the court. Jones v. State (1964), 244 Ind. 682, 690, 195 N. E. 2d *28460, 464; Warren v. State (1968), 243 Ind. 508, 519, 188 N. E. 2d 108,113.

¶12Judgment affirmed.

¶13Aehor, C. J., and Arterburn and Myers, JJ., concur; Jackson, J., concurs in result.

/246/ind/23 · .json · Public domain