*1 cracking ques- cause of settlement and debris in was the again evidence, There there disputed, tion. was further expenses problems were in incurred the correction of the cracking. by caused the settlement and
In Linderman Machine Co. v. Hillenbrand Co. App. 111, the court stated: theory granting pur- “The of the courts in relief to a chaser in an action him for fraud is that sus- the loss tained him the natural and which is result of fraud good, placed, should be made be and that he should as near practicable, good prior as condition as he perpetration of the fraud.” proof together the sum of taken $5226.89 questions other evidence recited is sufficient to submit the damages jury. causation and to the Appellants may
In this case well have a difficult time persuading the trier of fact decide case for them. How- ever, Appellants’ we believe case fraud is sufficient jury. to submit the same to the
Therefore, entering judg- the decision of the trial court in ment on the evidence was erroneous and the same should hereby is reversed with instructions to overrule said judgment motion for on the proceed evidence and determination of this case on its merits.
Hoffman, J., Staton, C.J. and concur. Reported in 2dE.
Note. —
Gerald A. v. of Indiana. 10, 1972.] 2-572A3. [No. Filed October *2 Ward, Palmer K. Indianapolis, appellant. for Sendalc, Attorney General, Theodore L. Wesley T. Wilson, - Deputy Attorney General, appellee.* P.J. STATEMENT THE CASE AND Buchanan, \OF appeal by defendant-appellant, FACTS —This A. Gerald Bradley (Bradley), from conviction nar- cotics-adapted instruments with adminis- drugs by injection narcotic in a ter human Ind. Ann. 1972). (Burns Supp. Stat. 10-3520 reverse. We § 16, 1971, afternoon, On March at about 3 o’clock in police patrolling high neighborhood burglary officer was Indianapolis person he when saw and another walk- ing along Parkway. person Fall Creek bag carrying objects a white “with it.” officer As the investigate, turned his vehicle around to Bradley and his companion ensuing chase, sight fled. In the the officer lost However, of both men. soon Bradley, observed time this alone, approached questioning. him for approached, Bradley
As the officer object wrapped threw an paper ground. in white tissue immediately to the The officer picked up object, unwrapped it, and found that it con- eye-dropper tained an awith needle attached. then He searched finding Bradley, pocket in his left coat cap a bottle *3 wrapped yellow burns on the bottom paper. in tissue Bradley grand indicted jury was the for crime the of possession adapted of narcotics instruments with the intent drugs by to way injection administer narcotic into a human being. part This in indictment reads as such: Jury County “The Grand for the of Marion in the State Indiana, upon present their oath do that GERALD A. BRADLEY at and did then or day on about the 16th March, A.D. County the Indiana, of Marion and in the State of unlawfully feloniously and there and with intent to drugs, possess administer narcotie have instruments, under his control certain syringe to-wit: a hypodermic needle, which said instruments were then and drugs adapted by injection
there ahúman for the use of narcotic being,...” (Emphasis supplied.) During trial, officer of the Narcotics Division the Department Indianapolis equipment Police identified the con- Bradley commonly inject as from instruments fiscated used to body. the human narcotics into charged guilty in the indictment found years. one to five from
sentenced Bradley’s con- the evidence sufficient to sustain ISSUE —Was adapted possession of narcotics instruments with viction for unlawfully administer to a human the intent to narcotics being? charged contends that conviction for the offense showing upon
cannot of mere of instru- stand injection adapted human ments for the of narcotics into the tending body. prove There must be other the intent evidence to being. administer narcotics to the human the to Since State only proved Bradley possessed that these instruments without proving human that he intended to administer narcotics to a being, cannot the conviction stand. argues
The State that the evidence was sufficient to sustain Bradley’s charged conviction as use because the intent equipment attempt possessed the could be inferred from his escape police from the officer. opinion is our the insuffi- DECISION —It evidence was Bradley’s conviction to sustain the failed cient because necessary prove conviction, i.e., adapted Bradley possessed instruments with narcotics to a human intent to administer weigh appeal, not this court will On evidence nor deter- credibility will witnesses. We consider mine together most favorable to
evidence with all logical may inferences and reasonable which be drawn Consequently, a therefrom. be affirmed will probative if there is substantial value guilty of facts could infer that the trier defendant was *4 Vaughn beyond a doubt. v. State reasonable 259 Ind. 765; Hash 2d 284 284 N. E. 259 Ind. 2d N. E. 770. indictment, pursuant to Ind. Ann. 10-
Under the Stat. § prove required 1972), to (Burns Supp. the State following three elements: of the each of narcotics
1) That had syringe hypodermic i.e., equipment, a needle; adapted for
2) the use of these instruments were That being; drugs injection in a human narcotic 3) Bradley possessed instruments with the That these drugs. unlawfully narcotic administer and use
intent to 383; Taylor E. 2d Hanger 266 N. E. Von presented the State It uncontested evidence is that the However, proved of elements. existence the first two the prove the third maintains that State failed the i.e., possessed the element, these instruments with unlawfully intent to administer narcotics to human a quantum of of A series recent have considered cases necessary possession of to sustain a conviction for equipment intention adminis- following ter narcotics. In all but one of the cases sufficient specific evidence of such intent was determined to exist: Hanger State, supra, presented most evidence Von package, specific intent, i.e., flight, abandonment previous convictions, use. In affirm- and admissions of narcotic ing recognized these conviction, Arterburn Chief Justice required, factors as indicative any question “. . . nor here do we think there history appellant’s there intent from the was evidence of previous activities, convictions own reference to which showed drugs which and statement the use narcotic prior arrest to his police a month he made that he was a narcotic user. When police officer appellant saw his move toward sack, well as he tried to hide the running of a consciousness car, some evidence all of guilt.” *5 426 Eskridge 363, v. State
The evidence 258 Ind. 490, convincing flight, 2d was also abandonment of — recognition package, by police of Defendant as a narcotics user, puncture admissions of narcotics on use and marks Supreme Defendant’s hands and arms. The Court affirmed authority Hanger on State, supra. of Von v. Sargent v. State App. 795, 430, 153 Ind. 2dE. Hauger State, supra, Eskridge followed Von State, v. supra. sustaining Sargent The evidence conviction was attempt arrest, to secrete the narcotics instruments at time of puncture (one marks on arms Defendant’s still which was bleeding) symptoms requiring existence withdrawal hos pitalization, and admission of narcotic addiction.
In Stevens v. State 275 N. E. 2d requisite specific satisfactorily intent demonstrated by needle marks and admission of narcotic use.
Even specific less evidence of intent was held sufficient Dabner 797,— E.N. flight plus puncture marks. Justice Prentice concluded that: although “In the bar, case at may we not intent infer the possession from alone, we fairly believe may that it be puncture possession, together inferred marks such with the evidencing the veins over of the defendant’s forearm injections.” (Emphasis supplied.)
recent
descending
In the
scale of the amount of
specific
evidence of
necessary
Taylor
finally
intent
to convict we
reach
(1971), 256 Ind.
It is true that hypothe if all reasonable tial evidence such evidence excludes *6 But, evidence the circumstantial ses innocence. merely if tends to arouse sus will not be sufficient it 338, guilt. picion (1967), Easton 248 State Ind. v. 6; (1970), 309, Tibbs v. 255 E. 228 N. E. 2d State Ind. 263 N. 728; (1968), 437, v. State 241 E. 2d 2d 251 N. Crawford 795. flight example circumstantial is
One flight competent scene of crime. While evidence of is to show guilt, a consciousness of it for trier fact to is weight placed determine what and value should be Torphy upon (1940), such evidence. State v. 217 Ind. 70; 383, (1971), 530, E. Banks v. State 276 28 N. 2d flight Furthermore, is E. alone insufficient to sustain N. 2d conviction; it be combined with other evidence which must beyond doubt a reasonable that defendant establishes charged. general the crime with which he is committed The recognized jurisdictions by perhaps is stated rule most best Underhill, Evidence in 1 Criminal 373 at 924: § flight attempted flight said “It cannot be that or before alone, legal presumption arrest, guilt taken raises so guilt therefrom, that must drawn or that an be inference of regard it, flight, prompted motive which his without to the guilt. proof only is, law, it is At most one circumstance prompted jury with the reasons that to be considered guilt guilt tending it, may or which inference of to show probative it satis- it has no unless raised, and be force appears avoid arrest or the accused factorily imprisonment fled charged. then, force the crime Even its for made, em- efforts means depending on the slight, knowledge by which the act motives ployed, and the 428 accompanied. departure may of the have accused prompted by been motives consistent He with innocence. may for totally have feared arrest a crime distinct from that indicted, may apprehended which he is or he have police.” (Emphasis supplied, at the hands of violence omitted.) People (1963) See also: v. footnotes Davis Ill. 29 841; 127, People Harper 2nd 193 N. E. 2d (1967), Ill. 36 v. 398, 841; People Hampton App. 2nd N. 2nd (Ill. 223 E. v. 1968) 371; , Ysasaga E. (Tex. 2d Crim. 305; 1969) , 444 v. Swain 2nd E. 2nd State S. W. 1 N. C. 94; App. 112, 160 S. Lincoln (1969), 183 470; N. W. 164 2nd Jones v. State 242
Neb. State v. Ortiz 77; Atl. 2nd Md. 219 Ariz. 9 953; v. United States Araujo-Lopez App. 449 Pacific 2d 1969), 466; Bailey (9th Cir. Fed. 2nd United States 1969), (D.C. 416 Fed. 2nd 1110. Cir. same effect in Indiana is Banks State, To the supra, put way: Prentice it this which Justice flight “Nevertheless, of an accused is a circumstance to against him considered in connection with other evidence, probative effect, its guilt, depending as evidence of upon the prompted conditions and the motive which it. Law P. Criminal 559. We previously C.J.S. have held § flight support alone will not a this explanation particularly true when there is an of a hypotheses with the is consistent of innocence. McAdams Ind. 403, v 671.” *7 . Hauger, Eskridge, Stevens, Dabner, Sargent Von The of contained elements all circumstantial cases lieu in addition to respec- or in tended to of connect the particular intending tive defendants with crime of use to equipment purpose. for an unlawful case before us there are In the no such tending elements to intending with the of connect crime to use narcotics purpose. Flight equipment plus for an unlawful possession in nothing these circumstances indicates more than a conscious- guilt, suspicion wrongful ness of or arouses of some conduct. attempted contraband, act The of concealment of the part the act of separate as a act or of considered whether suspicious flight, than circumstance. is also no more expresses Bailey States, modern Perhaps supra, United significance flight: reaction to the evidentiary flight, “The substantially lineating upon flight States, however, depreciated value of has Supreme in face Court decisions de- dangers unperceptive reliance inherent guilt. [Wong indicium an Fun United 471, 1963; States, 371 U.S. Starr v. 164 U.S. United longer hold tenable ‘the We no the notion that 1897.] righteous pursueth, man are wicked flee when no but shortly proposition The a lion.’ that ‘one who flees as bold as act is committed or is accused of after a criminal committing ing when guilt concern- so because he feels some it does legal as a ‘since is not absolute doctrine it that act’ knowledge entirely men common who are a matter fly through the scene of a sometimes from crime do innocent guilty being apprehended parties, or as the fear of ”
unwillingness appear as witnesses.’ attempted flight and concealment of narcotics Evidence insuffi- in the of the accused is adapted equipment prove possessed instru- these cient with the adminis ments tering using drugs or narcotic in violation of Burns any provision of or other the Uniform Narcotic 10-3520 § (et Drug seq.) (Burns Supp. Ann. 10-3519 Stat. Act. § evidentiary 1972). can connection it so tenuous support guilt beyond law conviction of a matter of not as doubt. reasonable This is therefore reversed and remanded discharge Bradley. instructions to trial court with concurs; J., Sullivan, J., opinion. White, dissents with
Dissenting Opinion agreement following Sullivan, J. I am with the total language Supreme in the contained unanimous decision of our *8 Taylor 92,
Court Ind. 267 N.
383, 385: “The it proved statute sets out three elements to be permit merely upon showing does the not possession adapted permit con- instruments. To such a viction would be effect to amend the assume statute. We Legislature including did not do useless act in intent; punish they element of if had intended to mere possession included adapted they have instruments would not Legislature The fact included that element. that the necessarily implies requirement proved the that intent be recognized they possession cases of there could adapted punishable under instruments which not be would is one of This those cases.” statute. beginning decisions that same not for court were it Hauger 666, Von Ind. E. 2d 266 N. continuing beyond Taylor through State, supra,
197 and 386, Stevens v. State 275 N. E. 2d 12 Dabner v. State 797, 1 E. 2d would my colleagues to vote with reverse.
Recognizing case before us involves paraphernalia, coupled of narcotic dis- tinguished particular from the indicia of unlawful presented by cited, the three cases interpretation last above of the court facts in the latter cases nevertheless com- pels me to the reluctant conclusion that the case us before falls within their ambit.
I would affirm.
Reported in
Note. — Sargent
Dwight of Indiana. Rehearing [No. 372A127. Filed October denied November 1972. Transfer denied 1973.] March