Asher v. State

• Decision Date: 03 February 1969
• Docket Number: No. 30854,30854
• Citation: 244 N.E.2d 89,253 Ind. 25
• Parties: S. W. ASHER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 89

244 N.E.2d 89

253 Ind. 25

S. W. ASHER, Appellant, v. STATE of Indiana, Appellee.

No. 30854.

Supreme Court of Indiana.

Feb. 3, 1969.

Rehearing Denied March 14, 1969.

Johnson & Weaver, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Robert R. Yeager, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

The appellant was charged by affidavit and found guilty of the crime of robbery. The only issue presented in appellant's brief is that 'no reasonable man could find the appellant guilty on the evidence submitted to the jury'. It is contended 'that the only evidence against the defendant was the uncorroborated testimony of an alleged accomplice and such uncorroborated testimony was refuted by independent, unrebutted and unchallenged testimony on behalf of this defendant.'

The evidence shows that the Burger Chef restaurant on South Madison in Indianapolis was robbed by two gunmen about 11:20 p.m. on April 26, 1964. None of the employees of the Burger Chef saw or heard the vehicle in which the two robbers came or in which they made their escape. The same night about 12:30 a.m. the police brought Robert U. Brown and Donnie Richey to the Burger Chef, where Brown was immediately identified by all three employees as one of the robbers. Brown implicated appellant Asher and his co-defendant, Oie Willoughby. Brown testified that Asher had approached him and suggested that they make some dishonest money together, and he introduced him to Willoughby and together they discussed 'scores' possibilities; that they drove around Indianapolis in a taxicab and looked at and discussed possible places for holdups.

The accomplice Brown testified that he, Asher and Willoughby decided they would rob the Burger Chef restaurant. Pursuant to this plan they left Brown's apartment between 10:00 p.m. and 10:30 p.m. on the night of the robbery and arrived at the restaurant between 10:30 p.m. and 11:00 p.m. Asher waited in the cab while Brown and Willoughby robbed the restaurant. After the robbery had been completed, Asher returned Brown and Willoughby close to Brown's apartment and let them out. About ten or fifteen minutes after Brown and Willoughby had arrived in the bedroom of Brown's apartment, Asher came in, helped divide the money taken in the robbery, and left about fifteen minutes later, which was around 12:00 p.m.

Corroborating evidence which the appellant contends was 'only minor corroboration' was given by a witness, Donnie Richey, who testified to substantially what Brown related occurred at Brown's apartment, namely, that Brown returned to his apartment about 12:00 p.m. on the night of the robbery; that Asher came in about ten minutes later and went into a bedroom where Brown and Willoughby were. They stayed about fifteen minutes and left, and while they were in the bedroom he heard what sounded like the handling of a considerable amount of money and change. According to Brown's testimony they divided the money three ways in his apartment, and he got $317.00.

The appellant attempts to get us, as a court of appeals, to disregard the testimony of an accomplice or, in the alternative, consider the evidence of Brown as 'inherently improbable and runs counter to human experience.'

It has long been the law in Indiana that the testimony of an accomplice, if otherwise competent as a witness, may be accepted by the jury and believed, and in such event is sufficient evidence for conviction. Fitzgerald v. State (1966), Ind., 219 N.E.2d 603; Mavrick v. State (1965),247 Ind. 77, 210 N.E.2d 426; Couch v. State (1965), 246 Ind. 531, 207 N.E.2d 365; Smith v. State (1961), 241 Ind. 601, 174 N.E.2d 47.

Burns' Indiana Stat.Anno. § 9--1603 provides specifically that 'accomplices, when they consent to testify' are competent witnesses. Once a witness had been found to be competent, the amount of weight to be given the testimony is one for the jury or the trier of the facts, and not for this appellate court. As stated by Judge Emmert in Kraus v. Kraus (1956), 235 Ind. 325, 328, 132 N.E.2d 608, 610:

'When an issue concerning the credibility of witnesses or the weight of the evidence is presented for our determination on appeal, we should carefully avoid any tendency to place ouselves upon the trial bench and usurp the functions of the trial judge. We are dealing with a cold record and cannot observe the witnesses, their conduct, and manner of testifying while on the witness stand.'

This rule is applicable both in civil and criminal cases. In Jackson v. State (1924), 194 Ind. 561, 562, 143 N.E. 625, this Court said:

'Question as to the credibility of witnesses, and as to what inferences shall be drawn from the facts proved are for the jury and the trial court, and if part of the evidence, standing alone, would justify a finding of guilty, this court cannot set aside the verdict of guilty because of other evidence to the contrary.'

This was further supported by the statement in the case of Hammond v. State (1928), 200 Ind. 343, 344, 163 N.E. 262, 263: 'It was the duty of the jury to determine if this witness told the truth in the trial under consideration.'

In addition to the testimony of the accomplice in this case, the jury also heard a corroboration of that testimony by Donnie Richey, which also tended to show the guilt of the accused. The conflicting testimony was presented to the jury, and as a result of their weighing the evidence the conclusion of guilt was reached. On appeal we look only to the evidence most favorable to the state to see if there is enough evidence to support the conviction, which in this case there plainly is. For an appellate court to go beyond this role is an invasion of the function of the trial court.

The judgment of the trial court is affirmed.

DeBRULER, C.J., and HUNTER and GIVEN, JJ., concur.

JACKSON, J., dissents with opinion.

JACKSON, Judge (dissenting).

I am unable to agree with the majority opinion herein and dissent thereto.

Appellant and one Oie Willoughby were charged by affidavit filed in Marion Criminal Court, Room 2, Marion County, Indiana, with the crime of robbery. Appellant entered a plea of not guilty to the charge. Appellant also filed notice of alibi to which the State filed written answer. Trial was had by jury which returned a verdict finding appellant guilty as charged in the affidavit. At the conclusion of the State's evidence appellant moved for a directed verdict of acquittal which motion was denied by the court. At the conclusion of all the evidence appellant moved for discharge which motion was overruled by the court. Appellant filed a motion for a new trial which was overruled. Appellant was sentenced to the Indiana State Prison for not less than ten (10) years nor more than twenty-five (25) years and disfranchised for one year. From such verdict, judgment and sentence stems this appeal.

The affidavit charging appellant and his co-defendant, omitting formal parts, signature and jurat, in pertinent part reads as follows:

'BE IT REMEMBERED, That, on this day before me, NOBLE R. PEARCY Prosecuting Attorney of the Nineteenth Judicial Circuit personally came DONALD W. CARLISLE who, being duly sworn, upon his oath says that OIE WILLOUGHBY AND S. W. ASHER on or about the 26th day of APRIL, A.D. 1964, at and in the County of Marion in the State of Indiana, did then and there unlawfully, feloniously, forcibly by violence and putting MICHAEL GLENN in fear, take from the person and possession of the said MICHAEL GLENN, money then and there of the value of ONE THOUSAND TWO-HUNDRED AND NINETY-FIVE DOLLARS AND NINETY-SIX CENTS in lawful money, which property the said MICHAEL GLENN then and there lawfully held in his possession and was then and there the property of BURGER CHEF SYSTEMS, INC., A CORPORATION, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

Appellant's notice of alibi, omitting formal parts thereof, reads as follows:

'Notice is hereby given that the defendant, S. W. Asher, proposes to offer his defense to the charge in the indictment evidence of alibi.

Said alibi will pertain to the 26th day of April, 1964, the date of the alleged robbery.

The defendant, S. W. Asher, was on the 26th day of April, 1964, for the 24 hours including the 26th day of April, 1964, in the following places, to-wit: various places in the city of Indianapolis and Marion County but at no time any farther south than Morris Street on the South side of the City of Indianapolis, Indiana; that on Saturday, April 25, 1964, and up until 2:00 A.M., April 26, 1964, defendant operated a certain Yellow Cab taxicab in his occupation as a taxicab driver and that he took the said taxicab to his home at 2:00 A.M. on April 26, 1964, and went to bed; that he arose from bed about 9:30 A.M. on said date and left for work again between 10:00 and 11:00 A.M. on said date and went to downtown Indianapolis to the bus terminal and the Union Station and had many trips back and forth with many passengers on said date until 11:30 P.M. approximately on April 26, 1964, checking his cab in to the Yellow Cab office at about 11:40 P.M. on said date; that the only points south of Washington Street in Indianapolis involved in these trips in the taxicab were to the Fountain Square neighborhood and possibly one trip to the Weir Cook Municipal Airport.

The above named defendant, S. W. Asher, by virtue of the provisions of Burns' Revised Statutes of Indiana, Section 9--1632, does hereby expressly require the Prosecuting Attorney for the Nineteenth Judicial Circuit to file and serve upon the defendant, S. W. Asher, or his Counsel, a specific statement in regard to, and fixing the exact date and time at which the prosecution proposes to present at the trial as the date and time of the alleged robbery alleged in the indictment. That said Prosecuting Attorney as aforesaid be required also to inform defendant or his Counsel...