Blum v. State

• Decision Date: 12 June 1925
• Docket Number: No. 24279.,24279.
• Citation: 196 Ind. 675,148 N.E. 193
• Parties: BLUM v. STATE.
• Court: Indiana Supreme Court

196 Ind. 675

148 N.E. 193

BLUM

v.STATE.

No. 24279.^*

Supreme Court of Indiana.

June 12, 1925.

Appeal from Circuit Court, Henry County; F. C. Gause, Judge.

Phillip Blum was convicted of buying, concealing, and aiding in concealment of property, knowing it had been feloniously stolen, and he appeals. Affirmed.

Evans & De Witt and Robert S. Hunter, all of Newcastle, for appellant.

U. S. Lesh, Atty. Gen., Mrs. Edward Franklin White, Deputy Atty. Gen., and Geo. R. Jeffrey, of Newcastle, for the State.

EWBANK, J.

[1] The affidavit on which appellant was tried charged that “a person to affiant unknown, on the 1st day of November, 1922, at and in the county of Henry, and state of Indiana, did then and there feloniously take, steal, and carry away 20 tires of the personal goods of Don Mowrer, and Phillip Blum did then and there feloniously buy, conceal, and aid in the concealment of said property; he, the said Phillip Blum, then and there well knowing the same to have been feloniously stolen,” etc. A motion in arrest of judgment for the alleged reason that the affidavit did not state a public offense was overruled, and appellant excepted. But we think it sufficiently charged that the defendant bought the tires in Henry county and concealed them in that county, and that they were stolen property. Their value was not of the essence of the offense sought to be charged. Section 2063, subd. 9, Burns' 1914; section 192, c. 169, Acts 1905, p. 626. Overruling the motion in arrest of judgment was not reversible error.

[2] Appellant filed a motion for a new trial for certain alleged reasons, including the alleged facts that the verdict was not sustained by sufficient evidence, that the trial court erred in admitting certain evidence, and that counsel for the state was guilty of misconduct in making certain statements in argument. Affidavits were filed with the notion for a new trial, charging that in the argument counsel for the state called on the jury to examine a check that was not introduced in evidence, and stated that he thought appellant had erased the word “tires” from it; that he told the jury that the principal witness for the state, who was under indictment, was “going to plead guilty,” and stated that another witness would “be taken back to the penitentiary in the morning,” of all of which there was no evidence. But there is no bill of exceptions showing that any of those things occurred. And this court can receive information of what occurred in open court only from statements in the record as made up of entries by the clerk and bills of exceptions certified by the judge and duly filed, not from motions and affidavits. The facts relied on by appellant not being sufficiently shown, any alleged misconduct of counsel, however gross, is not available as error.

[3][4] The evidence tending to prove that appellant concealed the stolen tires in Henry county, as alleged, was given by the witness Underwood, who testified that appellant bought them in Delaware county at a very low price, and received them after night from where they were piled in a fence corner out in the country, and that he brought them to Newcastle and “drove in on Twenty-Third street and along the railroad to the far end of this old building, and took the tires into this large building”; and by the witness Jaffe, to whom the tires were delivered at Richmond, Ind., who testified that appellant showed him the tires in a back room of his junk shop at Twenty-Fourth street and the Pennsylvania tracks, where there used to be a foundry, in Newcastle, Henry county, Ind., and that appellant there sold him the tires, and afterward delivered them to him at Richmond. Underwood and Jaffe were both under indictment-one for stealing these same tires, and the other for receiving them in Wayne county, with knowledge that they were stolen, respectively; but the testimony of accomplices is competent evidence, and if believed by the jury, may be sufficient to justify a verdict of guilty. Section 2111, Burns' 1914; Section 235, c. 169, Acts 1905, p. 636; Johnson v. State, 65 Ind. 269, 271;Schuster v. State, 178 Ind. 320, 322, 99 N. E. 423. We cannot reverse the judgment for lack of sufficient evidence to sustain the verdict.

[5] Underwood testified that he drove up to Muncie in his automobile with appellant, and there repaired an automobile for Howard Goar at the home of James Carr, and that appellant sat in his machine near by for an hour while witness was making the repairs, and while James Carr, Howard Goar, and a lady were there, and that at that time Goar went over to the car he was in and talked to appellant, and that later the same evening appellant bought the tires from Goar, and that appellant and witness drove out of Muncie with the tires in the car belonging to witness in which they had ridden up there. James Carr was called by the state as a witness, and examined by the prosecuting attorney, when he testified that at the time the automobile was repaired for Goar at his home there was nobody with Underwood and nobody in his car, and that Goar did not go over to it and say anything to appellant. In rebuttal, the chief of police of Newcastle was called by the state, and, over an objection and exception, was permitted to testify that on the day when he “brought James Carr back from Muncie” Carr made the statement that while Underwood was working on Howard Goar's automobile he saw a man in Underwood's car. The only objection offered was that it was an attempt by the state to impeach its own witness....