*1 weight However, significance testimony of Dr. Green’s testimony by because is lost of direct those who witnessed (three witnesses) opinion the crime in their the de- attempted fendant was not intoxicated at the time of the robbery. testimony, jury light every right of this
In the had testimony Green’s, Trier’s instead of that of Dr. believe Dr. we on will not determine which doctor or should have witnesses believed. judgment of the trial court is affirmed.
Lewis, C.J., DeBruler, JJ., Hunter concur. Jackson, J., concurs in result. Reported in 242 N. E. 2d 355.
Note. — Kenneth Richard Wincel Indiana. 668S96. Filed December
[No. 1968.] *2 Robinson, Indianapolis, Frederick B. appellant. for Dillon, Attorney General, West, Murray Deputy John J. Attorney General, appellee. for appeal is an J. This from a conviction of the
Arterburn, appellant degree burglary. only question of second The raised appeal on is that the evidence is not sufficient to sustain the finding guilty, and this centers about the fact testimony accomplice only impli- was the evidence that appellant. gave cated the accomplice, Cook, Thomas age years as 16 and that he lived the Father Gibault’s Boys School for at the time of the trial. He testified that he appellant planned burglary and the Indianapolis of an public school; appellant’s that he went to the home on Decem- 7, 1966, appellant ber and the drove the car to the school building English Avenue, Indianapolis, located at 2815 Indi- appellant ana. The waited in the car while Cook broke into building the school police, and was arrested who shortly arrived on the scene appel- after the break-in. The apprehended time, lant was not implicated by at the Cook in his police. conversations with the testimony contends that accomplice of an caution; must be viewed with there was no corrobora- prosecuting tion of testimony linking witness’s appel- crime, lant with the prosecuting and that witness was a juvenile delinquent. argued appellant’s It is presence at or public building near the school proved “beyond must be a rea- doubt” sonable and that felony intent to commit a “proved beyond must be a reasonable doubt.” With all these agree, we proof contentions must but the and standards re- place court —not ferred to are those which take appeal. on
Although
may meager,
may
we
look
upon
that which is most favorable to the state
review in this
10;
(1962),
Ponos Court.
243 Ind.
184 N. E. 2d
Bush v. State
Recently, 551, in Walker v. State 224 N. E. 45, 46, (Jackson, J.) this Court said: repeatedly “This has held that it Court will not evidence, will the favorable the consider that most evidence reviewing to the when State the issue sufficiency of evidence.” again has this said: Court many amazing appellants “It is that so come to this Court grounds here, relying under discussion when it is on this Court does not the evidence well settled credibility Rice it of witnesses.” nor will determine 223 N. E. 2d question a new trial raised the motion for of the sufficiency contrary of the evidence and that it was to law. alleged any motion dis
It did raise as error charge. appeal. question before How That is not us on ever, to the trial the motion to was made evidence, respects all court of state’s close was in nothing a more than demurrer the evidence which the pur for the most favorable to the is admitted state legal pose words, In same motion. other it has the as a for a affect motion directed verdict at the close of made jury. the state’s evidence in a trial At time court looked at the evidence most In favorable to state. E., Trial, 28 I. L. is it stated: § of, “A motion for a directed verdict is in nature or equivalent to, evidence, demurrer it admits any evidence,
all the facts which there is and all reason- able inferences can drawn from the evidence.” appears, therefore, judge It the trial correct position he took with reference to the motion to dis- charge, though ruling even thereon was not raised in motion for a new trial not before us as the dis- senting opinion assumes. stated, credibility
For the reasons neither of the witness weight may nor of the evidence be considered long supports Court as as the evidence the verdict. judgment of the trial court is affirmed.
Lewis, C.J., DeBruler, JJ., and Hunter and concur.
Jackson, J., opinion. dissents with
Dissenting Opinion. *4 JACKSON, agree am J. I unable to with the determina- by majority opinion tion the reached herein and dissent thereto. policy following
The statement of the citation of the fol lowing cases, 411, Ponos (1962), v. State 243 Ind. 184 N. E.
502 584, 2d 84, N. E. (1968), 237 10, Bush v. 809, E. 2d 219 N. Stock Ind. v. State holdings not cases of those
constitutes an extension of the by Furthermore, unsupported dicta. found therein and is majority opinion by implication, stance here taken review require its to would this Court to abandon there was in determine whether or order to verdict sustain the probative substantial evidence of value judgment court. of or the of the trial brief, in its In the case at bar the State admits “[t]he Were, the Issues Action, How the Issues Nature What Summary Was, Were Decided and What the Verdict Brief, sub- Record, Appellant’s. are of forth in as set appeal.” stantially purposes correct for the of bar, linking appellant only evidence, with in the case at Cook, source, charged from one Thomas the crime came police person at the scene who surrendered to guilt. implicated appellant as (Cook’s) Cook admitted appellant Seay from about testified to officer who testified hearing appel- hearsay presence of obtained outside the lant. can
I has held that a conviction admit this Court accomplice, in an had on the uncorroborated evidence of doing care evidence was to be so we have also held that the light fully carefully of all examined in the scrutinized and Kleihege v. State other evidence.
N. E. 786. contradictory case,
I in this outside Cook’s ask where any appellant stories, either evidence that was alleged accomplice principal crime. or tried, pertinent indictment part, reads as follows: Jury County of Marion in the State “The Grand for the Indiana, present upon that Kenneth their oath do Wincel December, day A.D. at and on or about 7th Indiana, did then County and in the State of of Marion *5 unlawfully, feloniously burglariously
and there and break building and enter into the and of structure THE BOARD OF SCHOOL INDIANAPOLIS then and there situated at 2815 THE OF CITY OF COMMISSIONERS English City County Avenue in aforesaid, of in, of Indianapolis, the and State building place and structure was not a habitation, felony human with intent to commit a there- unlawfully feloniously knowingly to-wit: and and ob- property tain and exert unauthorized control over the of THE OF BOARD SCHOOL OF THE COMMISSIONERS deprive CITY OF and to INDIANAPOLIS said THE OF BOARD THE SCHOOL COMMISSIONERS OF CITY permanently OF of the INDIANAPOLIS use and benefit property, being contrary of said then and there .... to provided the of form the statute in such case made and against peace dignity and the and of the State of Indiana.” evidence, theAt conclusion of the State’s after and rested, appellant’s attorney State had made a verbal motion to lack of for evidence. The court doing- overruled the motion and in so stated: Well, “The Court: I think the motion raises an issue of weigh law into which I can not the evidence most favorable and the reasonable inferences which can be therefrom; coupled drawn with the fact that an ac- cessory charged proven guilty principal can be aas ruling only tome one leads is motion overruled.” point case, I out that this criminal is the defendant presumption stands clothed with a of innocence which fol- throughout guilt proven lows him and until is beyond a doubt. That reasonable until the conclusion of the guilt beyond proof trial and the of a reasonable doubt established, inferences, presumptions all and doubts are and must be resolved in favor of the defendant’s innocence. court,
In case at bar the case tried to the having waived, been it mandatory duty therefore was the of judge, facts, very thing trier do he said do, he could viz: the evidence the State. At that of time, until case reached this Court for favorable
review, most was and could be no “evidence State,” place evidence at that time presump- time all At that the court was State’s evidence. indulged the de- favor tions and inferences had to be statutes, law, case rules and innocence under our fendant’s mandatory, the trier of the and it was sworn judge, facts, the trial to at that time such *6 pending the defendant. view of the then motion to clearly denying motion, court, ruling of the misunderstanding misap- error, court’s indicates obligations the law. under Such prehension as to his prejudicial abuse of an constituted discretion error defendant-appellant him rights in that it denied impartial a fair and tribunal. impartial trial before fair and cannot trial level states he that at the court A trial evidence, as well as all other evidence ad- weigh the State’s bar, give not, certainly and did the case duced, cannot impartial to the defendant. fair and us, cause should be reversed and the record On instructions the trial court with to sustain remanded for a new trial. appellant’s motion in 242 N. Reported E. Note. — Curry Judge Davis, ex rel. John T. Indiana Court, Division Criminal One. the Marion 17, 1968.] Filed December 1168S194. [No.