Brown v. State

• Decision Date: 13 November 1970
• Docket Number: No. 469S77,469S77
• Citation: 255 Ind. 227,263 N.E.2d 534
• Court: Indiana Supreme Court
• Parties: Robert S. BROWN, Appellant, v. STATE of Indiana, Appellee.

Page 534

263 N.E.2d 534

255 Ind. 227

Robert S. BROWN, Appellant, v. STATE of Indiana, Appellee.

No. 469S77.

Supreme Court of Indiana.

Nov. 13, 1970.

Frederick B. Robinson, Indianapolis, for appellant.

Theodore L. Sendak, Att. Gen., Kenneth M. McDermott, Deputy Atty. Gen., for appellee.

JACKSON, Judge.

Appellant was charged by affidavit with the crime of Robbery, said affidavit reading in pertinent part as follows:

'(T)hat ROBERT S. BROWN and JAMES TYLICKI on or about the 24th day of JULY, A.D.1968, at and in the County of Marion in the State of Indiana, did then and there unlawfully, feloniously, forcibly by violence and putting ANITA SMITH in fear, take from the person and possession of the said ANITA SMITH, money then and there of the value of ONE HUNDRED TWENTY THREE DOLLARS ($123.00), in lawful money, which property the said ANITA SMITH then and there lawfully held in her possession and was then and there the property of JAMES WHITLOCK, doing business as HOUSE OF JAMES ACCREDITED BEAUTY COLLEGES, 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 November 6, 1968, appellant waived arraignment and entered a plea of not guilty to the crime as charged. On November 22, 1968, appellant filed his waiver of jury trial, and this cause was immediately tried to the court without the intervention of a jury. On the same day the court found appellant guilty as charged and thereafter ordered a Pre-Sentence Investigation Report to be filed. On December 5, 1968, the court sentenced appellant to the Indiana State Reformatory for not less than ten (10) nor more than Twenty-five (25) years.

Appellant filed his motion for new trial on January 3, 1969, said motion attacking the finding of the trial court as not sustained by sufficient evidence and contrary to law. Appellant's motion for new trial was overruled on January 10, 1969. Appellant's sole Assignment of Error on appeal is that: '1. The Court erred in overruling appellant's Motion for a New Trial.'

From the evidence adduced at the trial of this cause, viewed most favorably to the State, it appears that at approximately 4:30 p.m. on July 24, 1968, a man, wearing a tan outfit with a tan hood and armed with a sawed-off shotgun, entered the House of James Beauty School and approached an employee, Anita Smith, who was proceeding to check out her cash register. The hold-up man shouted that a hold-up was in progress, made threats on Mrs. Smith's life, and demanded that she give him all the money in the cash register. She placed approximately $120 to $130 in cash, checks, and loose change in a Federal Reserve money bag and handed the bag to the hold-up man. He then left the premises accompanied by a companion who apparently was guarding the rear entrance to the building. The two men fled in what was described as 'a late model black car, an old, you know, old car.'

Patrolman Johnson was stopped at the corner of Crestview and Kessler when he received a report that a black 1951 or 1952 Ford had just been involved in a hold-up on North College Avenue, a short distance from where he was then stopped. Officer Johnson had just seen such a car and its two occupants heading south on Crestview. He turned around and proceeded toward the car, and, as he approached, he saw the driver thereof fighting with another person. The driver of the car fled upon observing Officer Johnson advancing toward him. Johnson positively identified the appellant as the driver of the car and the one that fled. With respect to the other occupant of the car, Johnson could only identify him as having very long hair.

Johnson immediately notified other law enforcement officials of what had occurred and then proceeded to examine the automobile in question. On the front seat he found a tan hood and cape outfit, later admitted into evidence as State's Exhibit #1, and a twelve gauge shotgun, later admitted into evidence as State's Exhibit #2.

Deputies Dunbar and Saunders of the Marion County Sheriff's Office assisted in the subsequent search for the hold-up men. While searching a garage behind 6018--6020 North College Avenue, the deputies came upon two men hiding in a corner thereof in a crouched position. These two men were positively identified at the trial as the appellant and one James Tylicki. Tylicki was described by the arresting officers as having very long, shoulder-length hair.

Appellant and Tylicki were subsequently searched at the scene of their arrest by Officer Dennis Hawkins in the presence of Deputies Dunbar and Saunders and Officer William Writt. At the time he was searched, Tylicki had on his person the following items: $76.00 in currency, $5.00 in a roll of dimes, $2.00 in a roll of nickels and 1 twelve gauge shotgun shell. Appellant at the time he was searched was similarly possessed of the following items: 22 loose quarters, 9 nickels, 55 loose pennies, 1 automobile key, 1 screwdriver and 1 Federal Reserve money bag, later admitted into evidence as State's Exhibit #3. Neither appellant nor Tylicki had billfolds; the money and other items listed above were stuffed in their pockets.

Mrs. Smith and Verla Poland, the office manager of the beauty college who was also present during the hold-up, identified the shotgun, State's Exhibit #2, as the one used during the commission of the robbery. Mrs. Smith stated specifically that she was able to identify the shotgun because of the 'fancy silvery stuff' appearing thereon. (Tr. p. 30). She was also able to identify the money bag, State's Exhibit #3, as the one taken from her because of certain distinctive markings appearing thereon. Both Mrs. Smith and Mrs. Poland stated that the tan hood and cape outfit, State's Exhibit #1, was the one, or similar to the one, worn by the man who robbed Mrs. Smith of the contents of her cash drawer.

Each of appellant's arguments presents substantially the same question for our consideration, i.e. whether or not the finding of the trial court was sustained by sufficient evidence. In deciding questions of this nature this Court is bound by its longstanding rule that it will consider only that evidence most favorable to the State, together with all the logical and reasonable inferences which may be drawn therefrom. Lambert v. State (1969), Ind., 249 N.E.2d 502; McGill v. State (1969), Ind., 247 N.E.2d 514. Also, a conviction will be affirmed if there is substantil evidence of probative value from which a reasonable trier of fact could infer that the appellant was guilty beyond a reasonable doubt. Smith v. State (1970), Ind., 260 N.E.2d 558.

Appellant contends that the immediate victim of the hold-up, Anita Smith, was not 'put in fear' by the man who confronted her while she was checking out her cash register for the day. Her testimony certainly suggests otherwise.

'Q. Did you have any particular feelings at the time this thing was going on?

A. Well, in regard to what he said about this, you do not look down a gun barrel at somebody and not feel fear for your life, especially when they are threatening to blow a hole through you * * *.' (Tr. pp. 45, 46)

In any event, this Court has previously stated, in Cross v. State (1956), 235 Ind. 611, 137 N.E.2d 32, that:

'The expression 'putting in fear' is described * * * as follows:

'And when it is laid to be done by putting in fear, this does not imply any great degree of terror or affright in the party robbed: it is enough that so much force, or threatening by word or gesture, be used, as might create an apprehension of danger, or induce a man to part with his property without or against his consent * * *.'

Certainly, the conduct of the hold-up man in the case at bar was sufficiently threatening to cause Mrs. Smith to part with the money under her possession and control against her consent.

Appellant further contends that it was not proven beyond a reasonable...