Boles v. State, 771S209

• Decision Date: 10 January 1973
• Docket Number: No. 771S209,771S209
• Citation: 34 Ind.Dec. 605,291 N.E.2d 357,259 Ind. 661
• Parties: William Earl BOLES, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 357

291 N.E.2d 357

259 Ind. 661

William Earl BOLES, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 771S209.

Supreme Court of Indiana.

Jan. 10, 1973.

Arthur Griffith, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Michael Schaeffer, Deputy Atty. Gen., for appellee.

PRENTICE, Justice.

Defendant (Appellant), aged nineteen years, was convicted in a trial to the court of second degree burglary and sentenced to imprisonment for a term of not less than two nor more than five years at the Indiana Youth Center. His appeal challenges (1) the sufficiency of the evidence and (2) the admission and rejection of certain evidence.

(1) It would serve no useful purpose to recite here all of the evidence that tended to support the verdict. Upon the issue of the sufficiency of the evidence, this Court will consider only that evidence most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. Gregory v. State (1972), Ind., 286 N.E.2d 666; Turner v. State (1972), Ind., 287 N.E.2d 339; Pinkerton v. State (1972), Ind., 283 N.E.2d 376. The conviction will be affirmed if, from that viewpoint, there is substantial evidence of probative value from which the trier of facts could reasonably infer that the appellant was guilty beyond a reasonable doubt. Gregory v. State, supra; Turner v. State, supra; Pinkerton v. State, supra.

With these axioms in mind, we need only point out that there was testimony from the arresting officers that the defendant admitted the break-in, took them to the burglarized premises and showed them where the missing items of personal property had been stacked, after removal from their proper place. True, the defendant denied having done either, but his credibility and that of the police officers lay within the exclusive province of the trier of the facts, and we cannot say that, as a matter of law, the evidence was insufficient.

(2) Admission and rejection of evidence:

(a) Lawrence Biggs was employed at the Red Bird Service Station, located across the street from the Zephyr Service Station, which was the burglarized premises. He was at his place of employment at the time the Zephyr Station appears to have been broken into. He had testified that he was on the Red Bird driveway servicing a customer's truck at about 4:15 a.m. and was then asked, '* * * Did anything occur to call your attention to the Zephyr Station across the street?' And he replied, 'Some boys came up and told me somebody was breaking in.' Defendant immediately moved to have the answer stricken as 'Hearsay'; however, the testimony not being for the purpose of proving the fact asserted by the declarant (the boys), was not prohibited by the hearsay rule. Trustees of Indiana University v. Williams (1969), 252 Ind. 624, 251 N.E.2d 439. The testimony was not offered to prove that the premises had been broken into but merely to establish the witness' reason for investigating. It was such investigation and the witness' testimony concerning his findings that established that the premises had in fact been broken into, that two boys, whose mode of dress was described, were nearby, that they ran away when discovered and continued to run when told to halt, and that a report of such findings was made to the police.

(b) To prove ownership and possessory rights relative to the burglary, the State introduced into evidence a photo copy of a lease between the owners and the tenant of the premises. The defendant objected to the introduction of such document as violative of the 'best evidence' rule. He has failed to show or even allege how he was harmed by this technical error, however. The record is replete with other evidence, admitted without objection, disclosing ownership and rights of possession corresponding to the allegations of the affidavit. Reversal may not be predicated upon the erroneous admission of evidence when evidence having the same probative effect has been admitted without objection or without contradiction. Loehr v. National Security Life Ins. Co. (1969), 144 Ind.App. 503, 247 N.E.2d 232; Shelby National Bank v. Hughes (1968), 143 Ind.App. 265, 239 N.E.2d 611.

(c) The defendant had been arrested, interrogated and released. At this time, it was not yet known that items of personal property were missing from the burglarized service station. Shortly after the release of the defendant, the police received additional information from the manager of the service station concerning property that he had discovered missing, and they decided to re-arrest the defendant. Police Officer Miller had testified concerning the frist arrest and the release. Up to that point, nothing had been related concerning the second arrest, and the prosecutor asked, 'After you released the defendant, Detective Miller, on this first occasion, was there, did you then receive any information from any outside source that anything else had occurred at that occasion except a broken window?' The defendant objected upon the basis that there had not been any evidence of any other 'occasion,' and by his brief argues that the question inferred that he had been arrested on many prior occasions. We regard this as ludicrous. The form of the question did nothing more than suggest that there had been an arrest subsequent to the one just related and served to inform the trial judge that...