*1 Freeman v. Indiana. 30,653. 5, 1967.] December Filed
[No. *2 Pushor, Columbus, & appellant. Delmbert of Dillon, Attorney General, John J. Leach, and Wilma T. Attorney Deputy General, appellee. appeal J. This from a conviction of the crimes
Lewis, Second-Degree Burglary, of Larceny, and Automobile Banditry. jury. Trial was held before a affidavit, omitting parts, the formal reads as follows: Wolfe, being duly “Alvin L. sworn, upon oath, says that he is informed and believes day that on or about of the 7th October, 1963, State of County at and in the of and Bartholomew Indiana, one Charles Freeman did then and there unlawfully, feloniously burglariously and break and enter building, dwelling into a place not a house human of
habitation, and in which said Charles Freeman no had right poses by Lloyd business enter, building being occupied said pur- for business Deiwert, partners doing E. Huffer and Rex V., building being Huffer-Deiwert T. said lo- Cottage Avenue, Columbus, cated at Bartholomew County, Indiana, with felony therein, intent to commit a to- unlawfully feloniously take, carry and wit: steal and goods, personal away property chattels and of the said Deiwert, Lloyd Rex Huffer and being E. then and there trary to the form of the Statutes in such .cases made and against peace dignity provided, and and State Indiana.” II
COUNT Wolfe, being duly sworn, upon oath, says “Alvin L. day informed and believes that on or about the 7th 1963, October, County at and in the of Bartholomew and Indiana, one Charles Freeman did then and there unlawfully feloniously take, carry away and steal and goods Lloyd personal and chattels of E. Rex Huffer and Deiwert, partners, doing one V., business as T. Huffer-Deiwert (1) radios, (2) television Admiral set and two then Sixty-Eight there of the value of Five Hundred Dollars and Ninety the form the Statutes being contrary ($568.90), Cents then and there in provided, such cases made and against peace dignity of the State of Indiana.” III
COUNT being Wolfe, duly sworn, upon oath, says “Alvin L. day is informed and believes that on or about the 7th Oc- tober, 1963, County at and in the of Bartholomew and State Indiana, one Charles Freeman did then and there unlaw- fully feloniously take, carry away steal per- Lloyd chattels sonal E. Huffer and Rex Dei- V., (1) Admiral wert T. television (2) set and two radios, then Sixty- and there the value of Five Hundred Eight Ninety ($568.90), Dollars and Cents and the said Freeman, place, at time and said Charles had on and near premises where said act was committed him a self- moving conveyance, to-wit: Truck, Chevrolet Panel *3 escaped by which he attempted the use of and intended and being contrary escape, then there and the form of the provided, against made in such cases Statutes the dignity peace of the State of Indiana.” approximately morning, 5:30 A.M. At appellant, the driving truck, stopped by who was a was police. Columbus burglary They that a had discovered had been committed in a shortly area T.V. store the before. was arrested having a driver’s police for not license and taken to head- quarters The in Columbus. truck was then searched and some reported missing from of the items posi- T.V. store were tively stolen. identified as those Also found in the truck were burglary The several tools. T.V. store’s pried door had been open. use paint tools showed and one had some The on it that store, that on have matched but could it was not identified as such. apprehended appellant stated that he was from
When “try Indianapolis and was Columbus to out” the truck with buying possibility it in mind. Later he said he had party drive by hired to brought named to Columbus been truck back $50.00. (3) who appellant three witnesses introduced trial the On substance, drive the testified, been hired to that he had question by morning in the same- 2:30 A.M. truck at him sister to Columbus and de- His drove named individual. testify by as to A.M. She did not posited him at the truck 3:30 checks time. Due to routine of the truck at that contents businesses, police on local the time Columbus 5:30 A.M. after 4:00 A.M. and before fixed as was apprehended. appellant was when the long combination, large a color T.V. stereo-T.V. A five-feet radios, repair equipment, set, some T.V. (2) transistor two taken. Some approximately of this was $8.00 impounded police and was never found. truck when raises, validly, (4) appeal: four errors on refusing erred in to instruct 1. the Trial Court That entering jury commit con- offense of on the Second-Degree tending Bur- is included in glary Count I of affidavit. covered as insufficient evidence to this 2. there was That viction contrary rendering it to law. giv- prejudicial committed error in Court the Trial 3. That crime, ing in a to aiders and abettors instruction as 13. No. Instruction jury tendered in not erred 4. That 7. Instruction No. appeal, appellant raised this states issue his first Trial error for the to refuse to reversible it was the lesser included offense instruct *4 Felony pursuant Entering Burns’ In to to Commit Appel Statutes, Anno., (1956 Repl.). §10-704, diana entering felony to in argues commit a lesser lant Second-Degree Burglary by Count as covered cluded point pressing on his relies affidavit. I of the Watford 10, 2d 405. (1957), Ind. 143 N. E. 237 Indiana State v.
215 authority This case is sound for the rule that such an error is, indeed, We, therefore, error. concur reversible appellant Second-Degree with Bur- that the conviction glary should be reversed. issue, appellant
In his second
maintains that
there is
appeal
insufficient evidence to
On
convictions.
weigh
evidence,
only
this Court
but will
look to see if
probative
there is substantial evidence of
value from which the
would be warranted in re
turning
guilty.
a verdict of
There must be such evi
prove every
to
charged.
dence
material element of the crime
v.
Gilmore
(1951),
359,
677,
State
2d
Ind.
N. E.
v. State
(1956),
Flowers
151, 139
185,
236 Ind.
N.
2dE.
Carlin
(1933),
644,
v. State
204 Ind.
Examining the Banditry, conviction of Auto first we note following: that the statute sets out the tempted escape. mitted Indiana state attempt an of which he or cycle, airplane, and each “Automobile conveyance, by [10] escape automobile, motorcycle, premises years upon conviction prison Statutes, Anno., 10-4710, (1956 Repl.). to commit a or nor more than felony, intend them where such banditry or other the use of which he or —If they any shall he or any person escape felony, having determinate —Use of thereof, escape, self-moving conveyance, by § they twenty-five airplane, or other or shall be seize attempt conveyance or having period attempted persons at an automobile they escape, attempt [25] the time on automobile, imprisoned attempted not less then ten escape, he, they shall years.” or escape self-moving committed, .commit banditry, or com- or the use motor- Burns’ or at- near or 85, 922, (1951), Ind.
In Todd 101 N. E. 2d this v. Banditry wherein the reversed a conviction of Auto prove appellant had on near State did not automobile, vehicle, similar which premises, escape attempt or in did use in an intended or only they escape. is that stolen did which truck which the was driv- found in the were *5 goods of a fraudu- ing. Todd, the fruits In as —derived appre- appellant car which lent found check—were bulky, heavy Though were hended as well. was not sufficient Court concluded that there guilty. so jury We a return verdict of from which could a conclude in this case. It remaining crime, Larceny, affirmed. be will possession unexplained
is settled in Indiana law that well proximity goods shortly after the crime stolen larceny. Gilley et al. v. support will a conviction of Appellant (1949), 701, 88 E. 2d 759. 227 Ind. N. possession of he came into had introduced evidence to how goods. his testi However, to believe chose not mony may here there we not overturn the conviction when is evidence to it. sufficient Appellant’s third issue contends that the committed gave error when it Instruction No. which reads as follows: every person “It is the aid law Indiana that who shall counsel, felony, a or encourage, hire, the commission of or who shall abet procure command, or otherwise affidavit, indictment, committed, may charged by be or if were a and convicted in same manner as tried principal, principal before offender either or after the convicted; upon charged, conviction such indicted penalties pre- punishment as are the same shall suffer scribed punishment principal. law aid, support, knowingly help or the law is to To aid under being present is the of a crime. It assist in at the time and .commission doing knowingly act to place, some though crime, perpetrator of the the actual render aid to taking in its commission. a direct share without beyond a rea- you in the case find from all the evidence If any one, all the offenses two or doubt sonable you person, further some committed were gave aid the defendant beyond doubt that reasonable find offenses then person such offense who committed to the you offenses find the principal.” aas stating showing objected, there was no evidence person more than one was. was involved. We there .conclude Due to the bulkiness of the items think it taken we very probable people two or more were involved. suggesting this instruction the Court was possibility jury. We do not feel that the Trial Court prejudicial objection committed error in his this matter and *6 properly was overruled.
The last issue raised is that overruling Trial Court appellant’s erred in tendered Instruction No. 7 which reads follows: “The has defendant introduced to evidence that he came Columbus, Indiana, question accompanied by on the date in purpose driving one Willa Fisher for the truck back Indianapolis, Indiana, prosecu- and it is incumbent on the your prove beyond tion to that satisfaction doubt a reasonable doing this was not all the defendant or was at- tempting apprehension.” to do at the time of his amply We believe that in in- this instruction was covered Court, given by structions numbered 12 and 15 as the Trial which, respectively, read as follows: criminal “In law “alibi” means elsewhere or in another place. It is a prosecution, mode defense to a criminal accused, party prove where the committed the crime with which he is in order to he could not have charged offers evi- place dence to show that he was in another at the time the alleged legitimate crime was This -a proper committed. defense and evidence relative thereto been has offered from
the witness stand on the behalf of defendant. This evi- by you along with, dence should be considered and in the light giving of all other the case such it weight you warrants, and, and credence as believe it after consideration, such should the evidence of alibi create a reas- your guilt onable doubt minds as to the of the any one more of the offenses under the three you guilty counts then should find the defendant not of such offense or offenses.” possession property “The exclusive of stolen soon after a larceny burglary committed, explained been has if not may an inference that jury, raise the satisfaction property possession person such stolen guilt does charged. larceny inference of The stolen, property possession the mere not but arises from the fact from arise shortly has possession after it of its satisfactory ex- stolen, coupled absence of a with the been tending pos- anything planation, to show that such or of innocence. In this case be consistent with is or session evidence has been showing certain presented the State by larceny allegedly from the Huffer-Deiwert taken shortly possession of the defendant after T. Y. Store larceny. alleged has evidence in The defendant offered goods. possession Jury, The explain such defense deliberations, offered consider the evidence should in its defendant on this issue in and the both light the State in the case such other evidence all the weight to evidence as to witnesses and credence warranted.” believes is Second-Degree Burglary Automobile convictions of reasons, Banditry are reversed for the each above-discussed Larceny conviction affirmed. and the Hunter, J., Arterburn, J., concur.
Jackson, J., part, part, opin- C. concurs dissents in with *7 ion. J.,
Mote, participating. not
Concurring-Dissenting Opinion charged by in C. three affidavit Jackson, J. degree burglary, grand counts of lar- with the second crimes ceny banditry. by jury and automobile Trial was result- had ing finding on counts. all three
Judgment upon the court rendered the verdict of the jury was as follows: IS, THEREFORE, “IT ORDERED AND ADJUDGED by hereby Court that the be and he is sen- the burg- affidavit, degree under Count I of the second tenced lary, custody Indiana to the the Warden of the by Prison for him confined said State
Prison to be
he,
years
years
nor
more than five
than two
less
Freeman,
incapable
holding any
said Charles
is rendered
profit
period
years,
office
or trust for a
of five
THEREFORE,
IS,
“IT
ORDERED AND ADJUDGED
by
hereby
the Court that
the defendant be and
is
affidavit,
sen-
tenced and committed under
mobile
III
Count
of the
auto-
banditry,
custody
of the Warden of the Indiana
by
Prison to be
him
State
not less than
confined in said State Prison for
year
years, and,
nor more
than five
by
“IT
FURTHER ORDERED AND
IS
ADJUDGED
charge
grand larceny
Court that
under Count II of
banditry
the affidavit is included in the offense of automobile
charged in
III of
as
or fine be
Count
the affidavit and that no sentence
imposed upon
defendant,
Freeman,
Charles
grand larceny
under
II
Count
of the
affidavit, and,
“IT IS FURTHER ORDERED AND ADJUDGED
imprisonment
imposed
penalties
Court that the
I
under
of the
III
Count
affidavit
Count
of the affidavit
defendant,
concurrently
Freeman,
served
Charles
pay
that he
and
Bartholomew
costs
this action and the Sheriff of
County
foregoing
is ordered to execute the
judgment
instanter.”
majority opinion
I concur in the
in the reversal
degree banditry.
victions of second
and automobile
majority
affirming
I
opinion
dissent to the conclusion in the
grand larceny. By
the conviction of
paragraph
the third
judgment
of the court set forth above, the trial court held
charge
grand larceny
under
II
Count
of the affi-
was included in
banditry
davit
the offense of automobile
III
Count
affidavit. It therefore
follows
majority opinion
reversal
III by
of Count
carried with
grand larceny charged
it the included offense of
in Count II
of the affidavit..
Reported in
Note. —