Bright v. State

• Decision Date: 21 November 1972
• Docket Number: No. 671S165,671S165
• Citation: 259 Ind. 495,289 N.E.2d 128
• Parties: Ronald Dean BRIGHT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 128

289 N.E.2d 128

259 Ind. 495

Ronald Dean BRIGHT, Appellant, v. STATE of Indiana, Appellee.

No. 671S165.

Supreme Court of Indiana.

Nov. 21, 1972.

Stephen Johnson, Marion, Grant County Deputy Public Defender, Marion, of counsel, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Appellant was convicted by the trial court of the crime of second degree burglary. He was sentenced to the Indiana State Reformatory for not less than two nor more than five years. His motion to correct errors and transcript of record were filed in this Court December 14, 1971.

On June 11, 1971, the appellant filed his verified petition for post-conviction relief in the trial court. A hearing was had on this petition, after which the trial court denied the relief sought. An appeal was taken from that judgment to the Court of Appeals of Indiana where the transcript and motion to correct errors were filed April 28, 1972, under cause No. 472--A--212.

On the 4th day of August, 1972, this Court made the following order:

'It has been brought to the attention of this Court that subsequent to the filing of appellant's appeal in this cause, he filed a post conviction remedy in the Grant Superior Court Number 2 in the same cause of action here on appeal. The trial court proceeded to hearing on said post conviction remedy and denied the same.

'Subsequently the appellant filed an appeal from the denial of his post conviction remedy which appeal was filed in the Appellate Court under cause number 472--A--212.

'Inasmuch as both appeals relate to the same conviction of appellant in the Grant Superior Court Room 2, it is therefore ordered by this Court that appellant's appeal in the Appellate Court cause number 472--A--212 be transferred to this Court to be consolidated with appellant's appeal cause number 671S165 pending in this Court.

'Dated this 4th day of August, 1972.

Donald H. Hunter

Acting Chief Justice'

The Attorney General of Indiana has filed a motion to dismiss the second appeal. The State's motion to dismiss the second appeal is granted.

At the time the appellant filed his motion to correct errors and transcript of record in this Court in the first appeal, the entire cause was removed from the trial court to this Court thereby depriving the trial court of any further jurisdiction over the action. 2 I.L.E. Appeals § 231 (1957). We, therefore, hold the appellant was premature in filing his verified motion for post-conviction remedy in the trial court at a time when the same cause of action was pending in this Court on appeal.

We now turn to the merits of appellant's appeal filed in this Court December 14, 1971, under cause number 671 S 165. The transcript discloses the following facts:

On the morning of June 9, 1969, one Charles Johnson, who lived in Fairmount, Indiana, near Payne's Grocery, heard gunfire at about 4:30. About a half hour later he observed an automobile drive down the alley near the store. He observed the car pull out of the alley and park on the street about two houses up the street from Payne's Grocery. He continued to watch the automobile and after 20 minutes, drove his own car past the automobile, but did not see anyone. He obtained the license number and returned home. About 20 minutes later, he saw an automobile go around the block and park beside Payne's Grocery. Mr. Johnson again drove by the parked car, where he observed the defendant putting a box in his car.

Mr. Johnson testified that he had known the defendant almost all his life and made a positive identification of him. He testified he saw the defendant put one box in the car and leave another box outside it. He observed cigarettes sticking out of the box that was still sitting on the ground. As Mr. Johnson drove toward defendant's automobile, the defendant got in his car, leaving the box outside the car. At that time Mr. Johnson observed the glass in the back window of the store was broken. As Mr. Johnson drove away, he observed the defendant get out and pick up the remaining box. He testified that at that time the time was approximately 5:45 A.M.

Mr. Johnson reported the incident to Mr. Swift, the town marshal, then returned to the Payne Grocery, where he again observed the broken window, a meat tray and a coffee can in back of the building. He noticed that holes had been shot through the front door glass, and that one shot had been fired into the lock of the side door. He also observed that the cigarette and candy counter was empty.

Charles Swift, the town marshal, also testified concerning the damage to the building and the presence of the meat tray and the coffee can near the rear window on the ground.

Mr. Payne, the owner of the store, testified that cigarettes which were on display on a counter the night before were missing, and that about $25 in change was missing from the cash register. Freda Payne, the wife of the store owner, testified that cigarettes of the value of $150 at retail were missing, and that various other items, including a transistor radio, were missing, for a total value of about $275.

Appellant first claims the judgment was not based upon substantial evidence of probative value. Citing Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641; Shutt v. State (1954), 233 Ind. 169, 117 N.E.2d 892; Leitner v. State (1967), 248 Ind. 381, 229 N.E.2d 459, 11 Ind.Dec. 138; Melvin v. State (1968), 249 Ind. 351, 232 N.E.2d 606, 12 Ind.Dec. 473. In each of these cases and other cases decided by ...