Brannon v. State

Decision Date07 May 1957
Docket NumberNo. 29437,29437
Citation142 N.E.2d 215,236 Ind. 680
PartiesFoster Meredith BRANNON, Irvin David Burton, Appellants, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

H. Wayne Baker, Bedford, Norval K. Harris, Sullivan, William C. Erbecker, Indianapolis, for appellants.

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

EMMERT, Judge.

This is an appeal from a judgment on a verdict convicting appellants of automobile banditry and sentencing them to the Indiana State Prison for 10 years. Appellants assign error here in overruling their motion for new trial, which challenged the sufficiency of the evidence to sustain the verdict and the admission of certain evidence on search and seizure.

At about 3:00 A.M., on the morning of October 1, 1954, the alarm system at the Fairbanks Branch of the Peoples State Bank of Farmersburg, Located in Fairbanks, Indiana, went into operation. The system was connected with the switchboard of the local telephone company; the operator on duty immediately contacted the cashier of the bank, Mr. Floyd Thomson, who lived about two blocks north of the bank. He picked up a twelve gauge shotgun and three shells containing number 8 bird shot, and walked down to the bank. He stopped on the north edge of the premises at the bank building. From within the building he heard a 'metallic' noise from which he inferred that someone was in the bank pounding on the metal door of the vault. He also heard the combination and heavy handle on the vault door drop to the floor. After some 8 or 10 to 15 minutes, two men came out of the rear door of the bank. Mr. Thomson ordered them to halt and, when they did not halt, fired, aiming behind them. The shot hit the side of a small white coal shed at the rear of the bank against which the two men were outlined. Both men broke and ran south. One turned behind the bank building and was seen no more by Mr. Thomson. The other turned west in front of a volunteer fire station which stood next to the bank.

Mr. Thomson pursued only a short disstance, then turned and proceeded north along State Road No. 63 in the direction of his home. As he walked he heard a car start west of him, and a short time later observed it traveling slowly north on a street to the west of road 63, and not showing any lights. The car turned east toward road 63, flicking its lights on and then off, and still moving very slowly. It stopped when it reached the intersection on road 63. As it started to move again Mr. Thomson called to the driver to stop. The car did not stop and he fired again, aiming at the right front fender and tire from a distance of about 50 to 60 feet. The shot apparently had no effect, and the car turned north on road 63 and rapidly accelerated, showing lights after it was 40 or 45 rods up the road. Mr. Thomson described it as a heavy, late model, two-toned car, with the body light grey or pastel and the top a little darker.

The bank building had been locked at the close of business on September 30, 1954. Upon returning to the bank in the company of the sheriff and several police officers shortly after the event described above, Mr. Thomson discovered that one of the windows had been pried open, the combination and handle of the door of the vault had been knocked off, and the door itself had been scratched and marked in an unsuccessful attempt to pry it open. Various tools such as crow bars and a sledge hammer were found along the route of pursuit described by Mr. Thomson.

Appellants concede that the foregoing constitutes substantial evidence that the crime of burglary in the second degree was committed. They argue that there is insufficient evidence (1) that the burglars had on or near the premises a 1954 DeSoto automobile by means of which they intended to escape, as charged in the affidavit, and (2) that they were the perpetrators of the crime.

As to the first point we think it is obvious that the car on which Mr. Thomson fired was used by at least one of the burglars to make his escape. Someone started his car at about 4:00 A.M. in that area of a very small unincorporated village where one of the burglars had just been seen, drove very slowly and without lights for several blocks to the intersection on road 63, failed to halt upon challenge by Mr. Thomson, and rushed away, turning on his lights, after being fired upon. The logical inference is the burglars had parked the car near the scene of the burglary, and intended to escape therein.

The evidence identifying appellants as the burglars depends upon more details. Mr. Thomson could not positively identify either defendant. He did state that they were similar in height, stature, build and profile to the two men whom he had seen outlined against the bank and coal shed, and that appellant Brannon was similar in these respects to the man whom he had pursued in front of the fire station.

Following the report of the burglary the police were looking, in accordance with Mr. Thomson's information, for a two-toned, late model automobile, the right front fender of which had been fired upon by Mr. Thomson with a shotgun. For reasons not described in the record, two officers were looking for the two-toned 1954 DeSoto automobile which belonged to appellant Brannon. At about 3:30 P.M. on September 30th, a resident of the Westwood Trailer Court located just outside of Plainfield, Indiana, had seen the accused Burton drive up in a Cadillac automobile, park it near the trailer belonging to the accused Brannon, get into the 1954 DeSoto with Brannon and drive away. Mr. Brannon's other car, a Buick, and the Cadillac, which, as later investigation revealed, was registered in Mr. Burton's name, remained at the trailer court. Testimony from other residents and from police patrolling the trailer court at various times during the night and early morning, established that the Buick and Cadillac were there all night and that the DeSoto did not come back that night. On the following morning at about 8:00 A.M., the two police officers mentioned above observed defendant Brannon drive into the trailer court in his DeSoto, park and go into his trailer. They followed him into the court and observed the car. It was two-toned with a tan body and a darker brown top. The right front fender displayed a large number of small marks and indentations indicating a well distributed shot pattern from a shotgun blast. The diameter of the pattern was from a foot and a half to two feet. At this point one of the officers called Mr. Brannon out of his trailer, identified himself and his...

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2 cases
  • Frasier v. State
    • United States
    • Indiana Supreme Court
    • June 4, 1974
    ... ... The ensuing assault on the Deputy validates the subsequent search of the car and seizure of the items therein. Chambers v. Maroney, (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Brannon, Burton v. State, (1957) 236 Ind. 680, 142 N.E.2d 215; Sisk v. State, (1953) 232 Ind. 214, 110 N.E.2d 627 ...         Appellant claims that his identification by the robbery victims at the scene of the shooting violated due process of law in that the circumstances were overly suggestive ... ...
  • Durrett v. State
    • United States
    • Indiana Supreme Court
    • September 22, 1966
    ... ... Brannon, ... Burton v. State (1957), 236 Ind. 680, 142 N.E.2d 215; Havener v. State (1955), 234 Ind. 148, 125 N.E.2d 25; Sisk v. State (1953), 232 Ind. 214, 110 N.E.2d 627; Pettit v. State (1934), 207 Ind. 478, 188 N.E. 784 ...         The appellants' argument in this section of the brief is ... ...

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