Arthur v. State

• Decision Date: 01 July 1949
• Docket Number: 28462.
• Parties: ARTHUR v. STATE.
• Court: Indiana Supreme Court

86 N.E.2d 698

227 Ind. 493

ARTHUR v. STATE.

No. 28462.

Supreme Court of Indiana

July 1, 1949

Appeal from Parke Circuit Court; Howard L. Hancock, Judge.

Warren Buchanan, Rockville, for appellant.

Cleon H. Foust, Indianapolis, J. Emmett McManamon, Atty. Gen., Merl M. Wall, Deputy Atty. Gen., Charles F. O'Connor, Deputy Atty. Gen., Frank Coughlin, Deputy Atty. Gen., for appellee.

JASPER Judge.

The appellant was charged by affidavit with the alleged offense of automobile banditry under § 10-4710, Burns' 1942 Replacement. He was tried by jury and convicted. Judgment and sentence of imprisonment followed.

On appeal to this court he has assigned as error the overruling of his motion for a new trial.

The appellant, as a ground for his motion for a new trial objected to the giving of appellee's instruction No. 34 which instruction was as follows:

'If the State has proved that the goods described in the affidavit were stolen and that such goods or any part of them was shortly after the larceny found in the exclusive possession of the accused, then the law imposes upon him the burden of accounting for his possession, and of showing that such possession was innocently acquired; and if he fails to do so, or gives a false account of his possession, the presumption arises that he is the thief. This rule of law applies to the crime of larceny, and grand larceny is one of the elements of the charge that defendant is here being tried for.'

The pertinent part of the objection made to the instruction by appellant is as follows:

'3. The instruction is erroneous for the reason that it is not applicable to the evidence in this case, and it will have the effect of placing upon the defendant the burden of accounting for his assumed exclusive possession of the property alleged to have been stolen.

'4. This instruction is erroneous in that it fails to distinguish and inform the jury as to the difference between a presumption of law and a presumption of fact.'

The above pertinent part of the objection was sufficient to raise a question on review.

The above instruction takes from the jury the right to determine the facts and circumstances in the case as to appellant's guilt or innocence. Any instruction by the court which in any manner takes from the jury this exclusive duty, or which attaches weight to certain evidence, or which would in any manner place the burden upon the appellant to prove his innocence, or force him to introduce evidence to create a reasonable doubt in the minds of the jurors, is erroneous. It is the affirmative duty of the State in criminal cases to prove the defendant's guilt beyond a reasonable doubt, and this burden cannot be shifted at any time to the defendant.

The instruction complained of presented questions of fact, and the jury alone must draw any inferences or presumptions which might be drawn from the evidence, and it is not for the court to say in such cases that proof of certain facts or circumstances would, as a matter of law, create the presumption of guilt. This court recognizes that whatever inference or presumption arises from unexplained possession of recently stolen property must be drawn by the jury and not by the court; that it is an inference or presumption of fact, and not an inference or presumption of law. The question must be submitted to the jury for its determination. Dedrick v. State, 1936, 210 Ind. 259, 2 N.E.2d 409; Stembarger v. State, Ind.Sup.1948, 82 N.E.2d 519, 521; Vaughn v. State, 1939, 215 Ind. 142, 19 N.E.2d 239; McAdams v. State, Ind.Sup., 1948, 81 N.E.2d 671.

The above instruction cannot be cured by the amount of the evidence presented by the State or by the heinousness of the crime.

As a further ground for new trial, the appellant alleged error in the overruling of his motion to suppress evidence (1) obtained by an unlawful search and seizure of appellant's automobile, and (2) growing out of an illegal arrest. Since these questions and the following questions will arise on a new trial, we will dispose of them in this case.

This court has held that where a defendant is arrested, the arrest extends to the automobile of the defendant, and a search and seizure is proper thereunder. In Pettit v. State, 1935, 207 Ind. 478, 481, 188 N.E. 784, 785, the court stated that the arrest of a person is not a violation of this constitutional guaranty against unreasonable seizure if the officers making the arrest at the time, have reason to believe, i.e., probable cause for believing, that the person to be arrested is committing, or has committed, a felony for which the arrest is made. The court further said:

'In determining the question of the reasonableness of a search or seizure a different test has been applied in reviewing the search, according to whether a dwelling house or an automobile was searched. Except when made to effect, or as an incidental to, a lawful arrest, a search of a private dwelling without a warrant, though upon probable cause, has been held to be unreasonable. But a search of an automobile if made upon probable cause, may not be unreasonable, though made without a warrant, and it is not essential that such search shall have been made to effect, or as incidental to, a lawful arrest. This rule usually has been applied to cases involving a search made under circumstances which, connected with the facts constituting probable cause, might tend to render the search impossible or impracticable if delayed until a proper warrant is secured. * * *

'The search of appellant's automobile was not unreasonable, and there was no error in admitting in evidence the exhibits obtained, and testimony as to facts learned, on the search.'

In De Long v. State, 1929, 201 Ind. 302, 308, 168 N.E. 22, 24, the court said:

'A person lawfully arrested for committing a misdemeanor may be searched without a warrant, and the search may extend to an automobile which he was operating at the time.'

It has been further held by this court that a person having been lawfully arrested, he and his automobile are subject to search, and any evidence obtained by such search is competent evidence at the trial, and the evidence may be used in the trial of an offense other than that for which the arrest was made. Smith v. State, 1939, 215 Ind. 629, 634, 21 N.E.2d 709; Haverstick v. State, 1925, 196 Ind. 145, 147 N.E. 625.

In the case at bar the appellant was placed under lawful arrest for the driving of an automobile without proper identification bill of sale, and license plates, and when the glove compartment of the automobile being driven by appellant was opened the money allegedly stolen rolled out. The evidence obtained by the search was used in the trial of this cause, and was...