Bruck v. State

• Decision Date: 01 November 1963
• Docket Number: No. 30436,30436
• Citation: 193 N.E.2d 491,244 Ind. 466
• Parties: Charles E. BRUCK, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 491

193 N.E.2d 491

244 Ind. 466

Charles E. BRUCK, Appellant, v. STATE of Indiana, Appellee.

No. 30436.

Supreme Court of Indiana.

Nov. 1, 1963.

William H. Williamson, James A. Colvin, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Asst. Atty. Gen., for appellee.

ARTERBURN, Judge.

The appellant was charged by affidavit with the commission of petit larceny, the taking of a Black and Decker Belt Sander, Model No. 7941, of the value of $78.40, the property of Housewares International, Inc. The trial was by court, resulting in a finding of guilty, and the appellant was sentenced accordingly.

The appellant contends that the evidence is not sufficient to sustain the conviction. Specifically he urges that the corpus delicti was not proved and that there is no rpoof of the taking of the property in question by the appellant. The evidence is quite meager in this case. It consists first of the testimony of one O'Connell who stated that he was the manager of Housewares International, Inc., a store handling merchandise of the nature of that involved in this case. He stated that on June 10, 1962 (the date of the alleged larceny) an inventory of the tool section of the store was taken under his supervision, and the particular Black and Decker Belt Sander, Serial No. 7941 was listed in the inventory and was in the possession of the store at that time and that its value was $78.40. There is no evidence of any break-in of the store premises. The manager states he never saw the defendant in his store or near the store premises between the dates of June 10th and June 12th, when a private detective purchased the sander from the defendant at his home, where the defendant maintained a small business in tools as a sideline. The owner of the store has no explanation of how the sander in question disappeared from his premises. Apparently he did not realize it was gone until it was discovered in the possession of the defendant. He answered 'no' to the following question:

'Mr. O'Connell has anyone, you or anyone else in your organization, to your knowledge authorized anyone to remove this (the sander) from your company's place of business?'

This question simply means that if there was an authorization, the manager was unaware of it. This does not in any fashion negate the fact that some employee may have disposed of or sold the sander himself. The defendant claims he purchased the sander at an auction. The question arises: Does the unexplained loss or absence of property give rise to an inference of larceny?

The State also urges that the 'unexplained exclusive possession of recently stolen property constitutes a circumstance from which a court or jury may draw an inference of guilt.' State v. Schroeppel (1959), 240 Ind. 185, 162 N.E.2d 683; Gilley et al. v. State (1949), 227 Ind. 701, 88 N.E.2d 759. It should be noted there must be proof that the property was 'stolen' and the possession must be 'recent'. Serious doubts arise in our mind that the corpus delicti has been proved in this case.

The mere fact that the property is missing, without more, could hardly prove a larceny. There is no evidence of a 'break-in' to corroborate any taking nor is there any evidence of the defendant being in the store and having any access to or any opportunity to take the sander involved. There is no evidence linking the defendant with an actual 'taking' of the property other than the fact that he had possession of it ten days later. The State did not see fit to bring in the sales clearks from the store to exclude all possibility of a sale or other disposition of the sander. The rule of non-production of evidence, which is within the power of the State to produce, certainly should not aid the State to the extent of raising an inference of guilt. Hiner v. State (1925), 196 Ind. 594, 149 N.E. 168.

In the case of Bailey v. State (1876), 52 Ind. 462, 476, a defendant was charged with the theft of a pair of new shoes which were discovered in his possession. The owner of the store who sold the shoes in the community was unable to say with certainty whether or not the shoes had been stolen or sold from his store. The court said:

'A more difficult question for us to decide is, does the evidence fairly sustain the verdict? We must adhere firmly to the principle of law, that the possession of property alleged to have been stolen is not a presumption of guilt against the possessor, unless a previous larceny of the property is established by rpoof; and the presumption of guilt will not arise until the larceny is proved by some proper evidence. In this case the evidence, aside from the conduct of the appellant, tends only very slightly to prove a larceny of the shoes. The condition of Moffett, the owner of the shoes, was such, at the time, that he might very easily have mislaid, forgotten, or lost them, without remembering anything about them; and the same condition would make it very easy for any one to steal the shoes from him without his knowledge. But the conduct of the appellant, after he had obtained possession of the shoes, is open to very grave suspicions.'

In the case before us we have no conduct on the part of the appellant to arouse any suspicion, other than possession. In fact, the appellant's evidence is that he purchased the sander in question at an auction. This was uncontradicted, although we grant the jury may not have chosen to believe his story.

In Osborn v. State (1926), 199 Ind. 44, 154 N.E. 865, nineteen new automobile tires were missing from a garage. When the premises where the defendant lived were searched and when the tires were discovered hidden thereon, the defendant escaped from the officers and was not found for a number of days later. In that case the court said there was sufficient corroboration evidence to raise a presumption of guilt.

The principle involved here is generally stated as follows:

'The unexplained exclusive possession of stolen goods shortly after the commission of a larceny may and often will be sufficient evidence, however, to justify a jury in finding the possessor guilty, although this presupposes that sufficient additional circumstances are not evidence to establish the fact that the larceny...