Baker v. State

Decision Date13 December 1956
Docket NumberNo. 29297,29297
PartiesWilliam Ed BAKER, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Albert W. Ewbank, Edwin J. Ryan, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Robert S. Baker, Deputy Attys. Gen., for appellee.

EMMERT, Judge.

This is an appeal from a judgment on a finding by the court that the appellant was guilty of robbery as charged in an affidavit, upon which he was sentenced to the Indiana State Prison for a term not less than ten (10) nor more than twenty-five (25) years, and disfranchised and rendered incapable of holding any office of trust or profit for ten (10) years. The assignment of errors here charges the court erred (1) in overruling appellant's motion for new trial, and (2) the court abused its discretionary power in fixing excessive bond on appeal.

The affidavit, filed February 15, 1954, charged that appellant on or about the 3rd day of February, 1954, robbed Mary Kriech of $4 in money. Appellant was represented by counsel, entered a plea of not guilty, and also filed a special notice of alibi pursuant to Chapter 228 of the 1935 Acts, §§ 9-1631 to 9-1633, Burns' 1956 Replacement. He waived a trial by jury, and the cause was submitted and tried before a special judge. The motion for a new trial questioned the sufficiency of the evidence to sustain the finding.

We have carefully read and re-read the entire bill of exceptions in this cause, since this conviction can only be sustained by holding the dubious testimony of Mary Kriech as to the identity of the appellant, uncorroborated as to any material essential, and contradicted by unimpeached evidence of an alibi, was sufficient to prove the appellant guilty beyond a reasonable doubt of the offense charged. 1

In reviewing the evidence in this appeal it should be remembered that 'some of the most tragic miscarriages of justice have been due to testimonial errors in this field, the error being chiefly due to imperfect Recollection, with the occasional further complication of defective Perception and of Suggestion.' 3 Wigmore, Evidence (3rd Ed.) § 786a, p. 163. This court should be particularly vigilant in appreciating the danger exemplified by the erroneous conviction of Nancy Louise Botts, the shocking history of which is recited in Chapter 144 of the 1939 Acts.

Section 9-1806, Burns' 1956 Replacement [Acts 1905, ch. 169, § 261, p. 584], as well as cases too numerous to cite, provide 'A defendant is presumed to be innocent until the contrary is proved. When there is a reasonable doubt whether his guilt is satisfactorily shown, he must be acquitted.' 'The scintilla of evidence rule does not obtain in this jurisdiction. The settled rule in this state requires that the material facts in issue be supported by some evidence, and this question is one of law reviewable on appeal. Nordyke & Marmon Co. v. Whitehead [1914], 183 Ind. 7, 106 N.E. 867.

'This court will not weigh evidence, nor will it say that a mere spark or trifle is sufficient to sustain an issuable fact. Wright v. Bertiaux [1903], 161 Ind. 124, 129, 66 N.E. 900.' Sullivan v. State, 1928, 200 Ind. 43, 47, 48, 161 N.E. 265, 267. 2 To prove an essential allegation beyond a reasonable doubt requires more evidence than to prove an allegation by preponderance of the evidence. Kempf v. Himsel, 1951, 121 Ind.App. 488, 516, 98 N.E.2d 200. 3 If the evidence merely tends to establish a suspicion of guilt, it is not sufficient to sustain a conviction. Robertson v. State, 1952, 231 Ind. 368, 108 N.E.2d 711; Steffler v. State, 1952, 230 Ind. 557, 104 N.E.2d 729; Todd v. State, 1951, 230 Ind. 85, 90, 101 N.E.2d 922; Hiner v. State, 1925, 196 Ind. 594, 149 N.E. 168. Mere opportunity to commit crime is insufficient to sustain a conviction. Osbon v. State, 1938, 213 Ind. 413, 424, 13 N.E.2d 223. 4 'It is not enough that evidence merely tends to support the conclusion of guilt; it must support it.' Martin v. State, 1897, 148 Ind. 519, 521, 47 N.E. 930.

In considering the standard by which we review the evidence where it is challenged as being insufficient to sustain a verdict or finding, this court has often said there must be substantial evidence of probative value before we can decide an accused has been proved guilty beyond a reasonable doubt. 'This last rule places the evidence before the court on appeal, not for the purpose of weighing it, or for the purpose of determining the facts when there is actual conflict, but for the purpose of deciding, as a question of law, whether or not there is substantive evidence in support of the required material facts essential to a conviction. It is not enough to sustain a conviction that the evidence, when given full faith and credit, may warrant a suspicion or amount to a scintilla. Sullivan v. State [1927], 200 Ind. 43, 47, 161 N.E. 265; Cleveland, etc., Ry. Co. v. Wynant [1893], 134 Ind. 681, 686, 34 N.E. 569.

'* * * We use the word 'substantial' as meaning more than 'seeming or imaginary." Sylvester v. State, 1933, 205 Ind. 628, 631, 632, 187 N.E. 669, 670.

'There must be some substantial evidence of probative value from which a reasonable inference of the guilt of the defendant may be drawn.' Todd v. State, 1951, 230 Ind. 85, 90, 101 N.E.2d 922, 924, supra. 'This court cannot weigh evidence, but must determine whether there is substantial evidence of probative value from which a jury could reasonably have inferred that appellant was guilty of the crime.' Stice v. State, 1950, 228 Ind. 144, 149, 89 N.E.2d 915, 917. See also Christen v. State, 1950, 228 Ind. 30, 39, 40, 89 N.E.2d 445; Mattingly v. State, 1952, 230 Ind. 431, 438, 104 N.E.2d 721; Hansen v. State, 1952, 230 Ind. 635, 639, 106 N.E.2d 226; Harrison v. State, 1952, 231 Ind. 147, 168, 106 N.E.2d 912, 32 A.L.R.2d 875; Bowens v. State, 1952, 231 Ind. 559, 562, 563, 109 N.E.2d 91; Shutt v. State, 1954, 233 Ind. 169, 117 N.E.2d 892.

The rule of law defining proof beyond a reasonable doubt has been well settled for many years and requires each juror to be so convinced by the evidence that as a prudent man he would feel safe to act upon such conviction in matters of the highest concern and importance to his own dearest and most important interests, under circumstances where there was no compulsion or coercion upon him to act at all. Chambers v. State, 1953, 232 Ind. 349 356, 111 N.E.2d 816; Morgan v. State, 1921, 190 Ind. 411, 130 N.E. 528; Bradley v. State, 1870, 31 Ind. 492. The standard of a prudent man is that of a reasonable man. If different persons might reasonably arrive at different conclusions from that reached by the trial jury, the verdict will not be set aside for that reason. Davidson v. State, 1933, 205 Ind. 564, 576, 187 N.E. 376. On the other hand if no reasonable man could find the evidence has proved an accused guilty beyond a reasonable doubt, a verdict would not be sustained by sufficient evidence.

When we carefully examine the cases decided in the long history of this court which have reversed convictions because they were not sustained by sufficient evidence, it is apparent that the court was applying a test that some material allegation had not been proved by substantial evidence so that no reasonable man could say this issue had been proved beyond a reasonable doubt. Sylvester v. State, 1933, 205 Ind. 628, 187 N.E. 669, 670, supra. 5

In the leading case of State v. Gregory, 1936, 339 Mo. 133, 143, 96 S.W.2d 47, 52, the court analyzed the rule on review to be as follows: 'Now since the test of substantial evidence is whether a jury reasonably could find the issue thereon, the result must depend in some measure upon the degree of persuasion required. In a criminal case liberty and sometimes life are involved, and there cannot be a conviction except upon a finding of guilt beyond a reasonable doubt. Necessarily, therefore, it becomes the duty of an appellate court as a matter of law to decide whether the evidence was sufficient to induce a belief of the defendant's guilt beyond a reasonable doubt in the minds of jurors of average reason and intelligence; and in resolving that question the court undoubtedly can pass on the credibility of the testimony to the extent of determining whether it was substantial in the sense above explained. In no other way can the rights of the defendant be protected. It would be an incongruous situation if the court were compelled to let a conviction stand as being supported by evidence warranting a verdict of guilt beyond a reasonable doubt, when for any reason made manifest on the record the court is convinced the evidence reasonably could not support a conviction.' This standard is supported in many jurisdictions. State v. Williams, 1947, 111 Utah 379, 386, 180 P.2d 551; Johnson v. State, 1911, 88 Neb. 328, 337, 129 N.W. 281; McNeil v. State, 1932, 104 Fla. 360, 139 So. 791; Ladner v. State, Miss.1942, 9 So.2d 878; State v. Spradley, 1954, W.Va., 84 S.E.2d 156, 161; Wright v. Commonwealth, 1954, 196 Va. 132, 137, 82 S.E.2d 603. 6 See also State v. Olavieri, 1937, 123 Conn. 678, 195 A. 181; State v. Gavle, 1951, 234 Minn. 186, 48 N.W.2d 44; Commonwealth v. Shea, 1949, 324 Mass. 710, 713, 88 N.E.2d 645; State v. Urbaytis, 1951, 156 Ohio St. 271, 277, 102 N.E.2d 248.

Mrs. Mary Kriech, who on the date of the crime charged resided at 335 North Bradley Street in the City of Indianapolis, was going home from work about 6:00 o'clock that evening. She had gone to a bakery to make some purchases, and was walking on Bradley Street toward her home when she heard someone cough and when she turned around she saw a strange man. She crossed the street and noticed that he crossed also. She was walking fast, and when she got near her home he 'rushed up behind me and grabbed me and stuck something in my back, which felt like a gun, and told me not to scream or run, that he would shoot me if I did, and that he wanted my money.' She gave him her purse...

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