Black v. State

• Decision Date: 03 June 1965
• Docket Number: No. 30552,30552
• Citation: 246 Ind. 550,207 N.E.2d 627
• Parties: Frank BLACK, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 627

207 N.E.2d 627

246 Ind. 550

Frank BLACK, Appellant, v. STATE of Indiana, Appellee.

No. 30552.

Supreme Court of Indiana.

June 3, 1965.

George E. Sawyer, Richmond, for appellant.

John J. Dillon, Atty. Gen., David S. Wedding, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal from a conviction of armed robbery. The main contention raised by the appellant on appeal is that the verdict of the jury is not sustained by sufficient evidence. A brief recital of the evidence most favorable to the State is necessary for a review of this question.

The testimony shows that on December 27, 1962, shortly before midnight, Don's Gulf Service Station in Richmond, Indiana was robbed. Three men drove up to the station in a car. One of them got out, came into the station and took a sum of money from the station owner, Donald Tharp, and the station attendant, Earl Lathrop. Lathrop testified the driver of the car kept a towel over his face and identified the get-a-way car as a black and white 1954 Ford Hardtop with a loud exhaust noise. One of the witnesses for the State, Truby McFarland, Jr., and accomplice in the robbery, was at the time of the trial an inmate at the Indiana State Prison where he was sentenced to serve a ten-year term for armed robbery as a result of a plea of guilty for robbery involved in the charges in this case. He testified that the appellant-Black and Delbert Ullery were with him at the time the robbery occurred; that appellant was the driver of the car; that previously they were at the house of Ullery's sister-in-law (Virginia Ullery) where they had been drinking. The fact that these parties were together before midnight and were drinking at the sister-in-law's house is corroborated by her. The testimony of McFarland further shows that they had run out of money and liquor and proceeded to Richmond with the expressed intentions of robbery. The sister-in-law testified that an hour or an hour and a half later they returned to her house with a renewed supply of liquor and that they had sufficient time to go to Richmond and back within an hour or an hour and a half. She further testified that they were driving a black and cream colored 1954 Ford Hardtop which made a loud noise.

The appellant attacks the veracity of McFarland as a witness on the ground that he is an ex-convict and that he was offered an inducement by the dropping of additional charges to be filed against him and was likewise threatened with such additional prosecution. McFarland testified that he was the man who went into the filling station and actually held up the attendants. One of the attendants also identified McFarland as a robber. McFarland placed the appellant-Black in a car as the driver at the time. No alibi was pleaded or shown on the part of appellant to contradict the testimony.

We recognize the testimony of McFarland may be questioned. However, the matter of his credibility and whether his story is to be believed or not, is one for the jury. Mattingly v. State (1957), 236 Ind. 632, 142 N.E.2d 607.

Although at common law, an ex-convict was not a competent witness, the law has since been changed, and such a witness is competent and his credibility is left for the determination of the jury. Burns' Ind.Stat.Anno. Sec. 9-1603 (1956 Repl.); 97 C.J.S. Witnesses Sec. 65, p. 459.

Accepting the evidence most favorable to the State on this appeal, it shows that the appellant-Black was driving the car at the time the robbery took place. With his knowledge that a robbery was to take place, his presence at the scene of the robbery, and driving the get-a-way car, there was sufficient evidence to show a participation in the robbery charged and a course of conduct that fixes his responsibility as a robber. Roberts v. State (1964), Ind., 197 N.E.2d...