*1 matters, previously is insufficient. Those are as we have stated, for the trial court to determine on the merits. The respondents point allegations out that there are fraud on part Commissioners; Sanitary the Board of that under guise declaratory sewage of a resolution to construct plants sewers, taking board, nevertheless, land purposes building lake, dam, for the and a recreational beyond jurisdiction; area which it is claimed is its that notices proceedings adequate particularly were not in that project did such notices not reveal the full involved. These jurisdiction are matters which lie within court the trial determine, may prohibition we not issue a writ of against respondent such consideration court. stated, petition
For the
prohibition
reasons
for a writ of
is denied.
Myers, J.,
Jackson, J.,
C. J. and
concurs
Achor,
result.
J.,
Reported in
Note. — v. State of
Schooler Indiana. July 30,662. Rehearing Filed 1966. [No. October 1966.] *2 appellant. George Braioley, Wayne, for of Fort R. Wedding, General, Dillon, Attorney David and S.
John J. Deputy Attorney General, appellee. for charged by appellant affidavit C. J. The waiving jury, shoplifting. with the offense of After trial guilty shoplifting by The court she the court. was found imposed of the action and a fine of and the costs $10.00 period of less Prison for a sentenced her to the Women’s years. than one nor more than five overruling appeal, only upon of her mo- she relies
tion for motion for new trial new trial. The and the law.” “verdict of the Court is to the evidence question appellant We assume that intended to call conviction, sufficiency support a and this of the evidence to theory upon argued. is the which the case was record, most From an examination of the the evidence finding indicate favorable to the the trial court would August appellant and in the forenoon of Stallings Parking lot in Fort one Jilean came to the Tower Stallings. Wayne, belonging Around Indiana a car to Jilean Stallings a.m., 11 to entered the 11:30 and Jilean Meyers Wayne, McCarthy and Store in Fort Men’s parking located across Harrison east of the Tower Street store, lot. to certain While asked see shirts, and told the men’s knit some shirts. She was shown going bills, pay salesman and that she that she was to some enough if had buy she and one of the shirts would come back store, money both the left. While were large bags, Stallings carrying and Jilean straw described larger. 12" x 14" or and as Jilean leaving going store, were then back seen parking Tower lot. Parking lot, they At the Tower were observed the at- go belonging tendant back to the car to Jilean They proceeded then left the car in the lot east. Within a minute or after the and Mrs. two it knit left the was discovered two men’s shirts missing. later, police- suit and a man’s A short two Parking proceeded men were summoned to the Tower belonging where observed automobile Jilean Stallings. Through open window, paper sack brown what looked like man’s suit and some or sweaters shirts. The at lot for officers waited occupants of the car to return. hours, After the officers had waited two three appel- *3 coming lant and Mrs. were seen west toward the parking away. They lot more than block were identified to parking the officers the lot occupants attendant as the the car. The and Mrs. then saw the policemen parking kept looking at the lot and at them in an They apprehensive parking manner. walked toward the lot continuing police officers, look at turned north and past length walked on lot block, turned east, away and started to along walk from the street one block to time, the north. At that pro- ceeded around the block and accosted them. they stopped they
At the time were told the officers that they They brought had come to town a taxi. were back to automobile, identified, and after the merchandise had been they bags were carrying arrested. The straw which were nothing except contained at that a head scarf in one bag, billfolds, receipts despite and there no or bills fact that the pay- claimed that she had made some
627 still contained purchases. The merchandise and some ments testimony indi- tags identifying from the goods, no purchased always from removed cated were possession of car or in the slips receipts sales testimony of Stallings. From the Mrs. appellant had twice before appellant, appears it that ac- she was shoplifting on occasions when convicted been companied by Mrs. the sense no direct evidence
It is true that there is testify were able to no witnesses long
taking anything. However, been settled that it has upon evi entirely circumstantial can rest a conviction probative value if there substantial dence (1965), guilt. support Greenwalt v. State an inference of (1963), 254; Wagner 243 608, v. State 209 2d 246 Ind. N. E. 914; (1958), 570, McCoy 237 et al. v. 188 N. E. 2d Ind. 654, N. 2d 190. E. Ind. certain of it true
And while
given
testimony,
the court
above in her
the facts
story
accept
there was evidence
bound to
her
where
tending
probative
it. Harrison
to contradict
value
770;
(1964),
2d
245 Ind.
197 N. E.
v.
Schweigel
(1964),
Considering record, all the evidence contained we are of the there is sufficient evidence finding support of the court below.
Judgment of therefore the trial court is affirmed. J., dissents, Myers, JJ., Jackson, Arterburn & with opinion. Achor, J.,
Dissent Jackson, agree the conclusions reached in J. I cannot with thereto. majority and dissent the majority opinion The is no evidence admits that there direct appellant’s guilt. of the The uncontradicted evidence of all the for the is that none of them ever saw witnesses alleged appellant any with of have been the merchandise to pos- appellant no stolen. There evidence that was ever taken, alleged session of the nor is have merchandise been any any appllant there or could kind that knew alleged have known the stolen that to have been merchandise Stallings. belonging was Not a automobile to Jilean single witnesses, including one of the clerks State’s appellant any testified that seen merchandise. with appellant Each of testify these they witnesses did did see any significant with appellant merchandise. It and Jilean also the attendant observed going Stallings, belonging to the Jilean but car testimony any else, there was no him one or evidence from or they then, any possession time, or at of were in other property allegedly stolen. during At policemen sometime afternoon two Parking called to the Tower Lot where observed belonging saw, automobile Stallings. to Jilean The officers through open car, paper window brown sack containing what looked like and a man’s suit some or sweaters waiting shirts. After some two or three hours the officers observed proceeding Mrs. in the direc- tion lot, at which time officers arrested companion, her Mrs. officers admitted at arrest no crime committed, companion that neither her or any with them merchandise. It is admitted the officers had no information that either companion her any crime, had committed nor did officers have warrant for the companion. arrest or her compelled areWe weigh in the case at bar to the evi- dence determine the issues this There is a total case.
629 guilt appellant, and this to the of the of evidence as lack requires guilt appellant of the case, the law a criminal any Baker v. State proven beyond reasonable doubt. be 641; Lindley 55, v. 2d State (1956), 236 138 N. E. Ind. 261, 1905, 169, 661; ch. (1929), Acts Ind. 166 N. E. § Replacement. 9-1806, p. 584, Burns’ 1956 § majority on the authority cited in the is Some entirely upon cir- can rest proposition that . . a conviction “. proba- there substantial evidence if is cumstantial no inference or there is In criminal cases value. . . .” tive of the guilt. the innocence presumption of guilt beyond presumed proven a reason- until is defendant is able doubt. applica- permit does not
The fact this case situation majority principles in the of law cited tion of the dubious evidence is no substantial opinion for the reason there guilt points to probative value in the case at bar appellant. of the guilty sup- must verdict of be is that a
It well established ported proof every element of the offense by evidence in charged. to deter the true test
The courts have held
respect
to its
evidence
the value of circumstantial
mine
case,
sufficiency
a criminal
a conviction
warrant
are con
proof
circumstances which
whether
establishes
guilt
hypothesis
sistent,
or which coincide with
circumstances,
satisfactorily
accused,
but whether
character,
point
so
established,
are of so conclusive
guilt
unerringly
as to exclude
surely
of the accused
(1950),
v.
every hypothesis
Christen
of his innocence.
(1925),
445;
196 Ind.
Hiner v. State
E. 2d
228 Ind.
89 N.
168;
(1890), 126 Ind.
v.
594, 149 N. E.
Cavender
47,
Mention made stopped they told the officers that had come to town in a taxi.” Other than a statement to that effect officer, only testimony an relative to a taxi was that of the by taxi, who testified she had come from home Wayne she met Jean at the corner of Harrison and Streets.
In pointed addition to the infirmities heretofore out this dissent, the unlawful arrest in violation of her *6 rights, alone, requires judg- constitutional reversal ment herein. reviewing,
After weighing, all the evidence record clearly apparent it is sup- the evidence is insufficient to port verdict, and therefore the verdict is law. judgment The should be reversed and the cause remanded to the trial court appellant’s with instructions to motion sustain for a new trial. Rehearing petition rehearing ap- C. J. In for her.
pellant complains original opinion court did not allegation deal with her that her arrest was unlawful. opinion We are of the original that the facts stated in our opinion were sufficient facts to demonstrate that
making proper believing arrest had cause for felony committed and that the arrest was not unlawful. are of
We that the other matters raised appellant’s petition rehearing for are without merit. petition rehearing for is therefore denied. Myers, JJ., Jackson, J.,
Arterburn and
voted for
rehearing. Achor, J.,
Reported
Rehearing
in
Note. —