Bolton v. State

• Decision Date: 15 September 1970
• Docket Number: No. 1,No. 369S39,369S39,1
• Citation: Bolton v. State, 261 N.E.2d 841, 254 Ind. 648, 22 Ind.Dec. 606 (Ind. 1970)
• Parties: Fred A. BOLTON, Michael Allen Williams, Appellants, v. STATE of Indiana, Appellee
• Court: Indiana Supreme Court

Page 841

261 N.E.2d 841

254 Ind. 648

Fred A. BOLTON, Michael Allen Williams, Appellants, v.STATE of Indiana, Appellee.

No. 369S39.

Supreme Court of Indiana, Division No. 1.

Sept. 15, 1970.

George T. Popcheff, Indianapolis, for Fred A. Bolton.

William T. Laswell, Michael T. Dugan II, Indianapolis, for Michael Allen Williams.

Theodore L. Sendak, Atty. Gen., Murray West, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Judge.

Appellants were convicted of the crime of theft as defined in Burns Ind.Stat., 1969 Supp., § 10--3030 on a plea of not guilty submitted to the court without a jury.

The Appellant Williams was sentenced to the Indiana State Reformatory for a term of not less than one nor more than ten years, and the Appellant Bolton was sentenced to the Indiana State Prison for not less than one nor more than ten years.

The evidence in the case was as follows:

On or about November 9, 1966, a Bolens Husky Model 1050 Tractor with snow plow was reported missing from a garage occupied by Indiana Credit League located at 2719 Arlington Avenue in Indianapolis.A window in the garage had been broken and a chain that fastened the tractor to the concrete floor had also been broken.There was testimony that the owners did not give permission to either of the appellants to exercise control over the tractor.Shortly after the tractor was taken, a relative of the appellants informed one Arthur Sanders that appellants had a tractor for sale.

Sanders testified that 'around the middle of November of 1966' he met the appellants at a house trailer in Lawrence.At that time he discussed the sale of the tractor with the appellants and with one other man who accompanied them.A price of $300 was agreed upon and three men, including both the appellants, accompanied Sanders to the place where the tractor was stored in the 2600 block on Arlington Avenue.Appellants and Sanders loaded the tractor in Sanders' truck and $300 was accepted from Sanders in payment for the tractor.

Appellants' first assignment of error is that the decision of the trial court was not sustained by the evidence in that the State failed to prove that the defendants ever had possession of the tractor.Appellants cite several authorities which hold that 'mere presence' of the defendants in regards to the property in question does not constitute possession.We agree with this general proposition of law; however, in the case at bar the evidence demonstrates far more than 'mere presence' of the defendants concerning the stolen property.They had entered into a discussion with Mr. Sanders concerning the price to be paid for the tractor, had gone with him to its place of storage, removed it from a building, placed it on his truck and accepted $300 from Mr. Sanders in payment for the tractor.We cannot accept the appellant's position that they were merely present at a location where a stolen tractor was kept.We hold that the evidence was sufficient to sustain a finding by the trial court that the appellants were in exclusive possession of the tractor after it had been stolen.This Court has previously held that exclusive possession of property shortly after it has been stolen is a circumstance to be considered by the trier of fact that those in possession are guilty of having committed the theft.Durrett v. State(1967), 249 Ind. 12, 230 N.E.2d 595, 11 Ind.Dec. 593.

Appellants' second assigned error is that the finding and decision of the trial court was not sustained by the evidence in 'that mere possession of stolen goods will not give grounds in itself for conviction for theft, but must be coupled with other evidence showing that the defendants did in fact commit the theft.'

It is the contention of the appellants there was no evidence that they in fact committed the theft of the tractor and that their later possession of it was not close enough in time to warrant an inference that they had committed the theft.In support of this propositionthe appellants cite Finch v. State(1967), 249 Ind. 122, 231 N.E.2d 45, 12 Ind.Dec. 22, andBruck v. State(1963), 244 Ind. 466, 193 N.E.2d 491, 2 Ind.Dec. 291.However, there is a marked difference between the facts in each of the above cases and the facts in the case at bar.

In the Finch casethe appellant had been convicted of burglary of a meat market, and when arrested some nine and one-half hours after the time of the burglary was in possession of meat and cigarettes.However, the Court pointed out that the State never established that the meat and cigarettes in the possession of the appellant were goods that were taken from the store, nor did the Court find that there was sufficient evidence to establish that the appellant had committed the breaking necessary to prove the burglary.

In Bruckthe Court pointed out that there was no evidence of a break in to corroborate any taking nor did the State produce any evidence from the owners to exclude the possibility of a sale or other disposition of the merchandise.In the absence of this evidence the Court ruled that the non-production of evidence which was within the State to produce caused the State to fail in raising any inference of guilt.For that reason the Court refused to apply the rule of exclusive possession in that case.

In the case at bar, however, as above set out the State proved a felonious taking of the tractor and produced affirmative evidence that the owners had not given permission to either of the appellants to exercise control over the tractor.The tractor was stolen on the 9th of November.Shortly thereafter, the exact time is not stated, one Sanders Postle, a relative of Appellant Bolton, contracted Mr. Sanders at his place of employment and told him the defendants had a tractor for sale, after which Mr. Sanders contacted the appellants and made the purchase above described.The entire transaction according to the evidence was completed by the middle of November.We hold that the State had made its prima facie case before the trial court when it presented evidence of exclusive possession in the appellants shortly after the theft of the tractor.The weight of this evidence was to be determined by the trier of fact and not by this Court.At the point in the trial when the state had made its prima facie case, if the appellants had evidence which would have explained their possession, it was their privilege to present the same.In the absence of such explanation, the trier of fact was entitled to believe the evidence presented by the State in making its prima facie case.(SeeDurrett, supra.)

The appellants also state that since there was more than one person present at the time the transaction was made selling the tractor to Mr. Sanders and that Sanders could not remember which man accepted the $300, the trier of fact had no evidence to establish which one of the persons present actually had guilty knowledge concerning the theft of the tractor.We see no application of this argument for at the time the sale was made to Sanders those present were obviously acting in concert one with the other.The law in Indiana is well established that an accessory to a crime may be prosecuted as a principal.BurnsInd.Stat., 1956 Repl., § 9--102.From the circumstances presented by the evidence the trial court had ample evidence before it from which to find that the appellants had equally participated in the theft and the sale of the tractor.

The trial court is, therefore, affirmed.

HUNTER, C.J., and ARTERBURN, J., concur.

JACKSON, J., dissents with opinion in which DeBRULER, J., concurs.

JACKSON, Judge (dissenting).

I am unable to concur in the majority opinion and dissent thereto.

This is an appeal from the judgment of the Marion Criminal Court, Division 1, wherein the appellants were convicted of the crime of theft as defined by Acts 1963 (Spec. Session), ch. 10, § 3, p. 10, being Ind.Ann.Stat. § 10--3030(1969 Supp.).

The affidavit charging the appellants with the offense reads, in pertinent part, as follows:

'BE IT REMEMBERED, That, on this day before me, NOBLE R. PEARCY Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came JOHN E. FERGUSON who, being duly sworn, upon his oath says that FRED A. BOLTON, ADRON EUGENE BULLINGTON and MICHAEL A. WILLIAMS on or about the 8th day of NOVEMBER, A.D. 1966, at and in the County of Marion in the State of Indiana, committed the crime of theft in that they knowingly, unlawfully and feloniously obtained and exerted unauthorized control over property of INDIANA CREDIT UNION LEAGUE, INC., a corporation, to-wit: ONE (1)BOLENS HUSKY MODEL 1050 TRACTOR WITH SNOW PLOW ATTACHMENT, of the value of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00), intending to deprive INDIANA CREDIT UNION LEAGUE, INC., a corporation, permanently of the use and benefit of said property, 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.'

On January 17, 1968, the appellants waived arraignment and pleaded not guilty.On December 5, 1968, the appellants were tried to the court, and found guilty as charged.Thereafter the appellant Williams was sentenced to the Indiana State Reformatory for a term of not less than one (1), nor more than ten (10) years, and costs, appellant Bolton was sentenced to the Indiana State Prison for not less than one (1), nor more than ten (10) years, and costs.

On December 26, 1968, the appellants filed their motions for a new trial in which they alleged that the decision of the trial court was contrary to law, and not sustained by sufficient evidence.The trial court overruled these motions on January 3, 1969.On appeal the appellants' sole assignment of error is that the trial court erred in overruling their motions for a new trial.

From the evidence adduced at trial, it appears that on or about november 8, 1966, a Bolens Husky model 1050 tractor with snow plow was reported...