Cottingham v. State, 873S152

Decision Date20 November 1973
Docket NumberNo. 873S152,873S152
Citation303 N.E.2d 268,261 Ind. 346
PartiesHenry Wesley COTTINGHAM, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Dale J. Myers, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice.

This appeal is from a conviction for armed robbery (IC 1971, 35--12--1--1 (Burns' Ind.Stat.Ann. § 10--4709 (1970 Repl.)). In the early morning hours of August 11, 1972, a lone gunman robbed the Hook's Drug Store at 4311 South Anthony Street in Fort Wayne. The gunman forced the two employees then present to give him the money from the cash register. He also took a number of watches from a display case. The gunman was arrested after being identified through fingerprints left in the store.

At the bench trial, Appellant presented an alibi. There was testimony that he left his place of work, a tavern about fifteen blocks from the drugstore, at either precisely 3:00 A.M. or a few minutes before 3:00 A.M. The testimony of the employees indicated that the robbery occurred at 3:00 A.M. There was also a stipulation that Appellant's wife, who was unavailable at trial, would have testified that the Appellant was home with her by 3:20 A.M. The home of Appellant's wife is approximately three blocks from the tavern where Appellant worked. However, Appellant was identified in open court by one of the employees (the other had died prior to trial) and the fingerprints in the store were proved to be the Appellant's.

Appellant's single specification of error is that the evidence was insufficient to place the Appellant at the scene of the crime at the time of the crime. Appellant's argument is that his introduction of alibi evidence puts a burden upon the State to rebut, beyond a reasonable doubt, the alibi. Appellant is mistaken. Alibi evidence is itself rebuttal evidence as to the State's evidence. The State is not required to rebut specifically such evidence if there is sufficient evidence otherwise to prove the crime as charged. Washington v. State (1971), Ind., 271 N.E.2d 888; Witt v. State (1933), 205 Ind. 499, 185 N.E. 645. The trier of fact is not required to brlieve an alibi witness any more than it must believe any witness. Whether or not the presentation of an alibi is sufficient to raise a reasonable doubt as to a defendant's guilt is a question of fact for the judge or jury. Stephens v. State (1973) Ind., 295 N.E.2d 622; Cole v....

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8 cases
  • Rowe v. State
    • United States
    • Indiana Supreme Court
    • July 26, 1974
    ...clearly sufficient to establish the necessary elements of this offense. Schuster v. State (1973), Ind., 302 N.E.2d 496; Cottingham v. State (1973), Ind., 303 N.E.2d 268. Appellant's next contention concerns his motion to produce made during the trial. A portion of Cyril Laycoff's testimony ......
  • Cottingham v. State
    • United States
    • Indiana Supreme Court
    • August 31, 1978
    ...under Post-Conviction Remedy, Rule 1. His conviction for armed robbery was affirmed by this Court on direct appeal, Cottingham v. State (1973) 261 Ind. 346, 303 N.E.2d 268. He raises the single issue of whether he was denied his constitutionally guaranteed right to the effective assistance ......
  • Bayes v. State
    • United States
    • Indiana Supreme Court
    • August 9, 1984
    ...for the jury to decide whether the presence of the alibi raised a reasonable doubt as to Defendant's guilt. Cottingham v. State, (1973) 261 Ind. 346, 347, 303 N.E.2d 268. The jury is not required to believe an alibi if the State's evidence is such as to render the disbelief reasonable. Jone......
  • Cottingham v. State
    • United States
    • Indiana Supreme Court
    • July 21, 1981
    ...to twenty-five (25) years in prison on March 16, 1973. Upon appeal to this Court, his conviction was affirmed. Cottingham v. State, (1973) 261 Ind. 346, 303 N.E.2d 268. After filing a petition for post-conviction relief, appellant was allowed to file a belated motion to correct errors. Cott......
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