Carey v. State

• Citation: 144 N.E. 22,194 Ind. 626
• Decision Date: 05 June 1924
• Docket Number: No. 24460.,24460.
• Court: Supreme Court of Indiana
• Parties: CAREY v. STATE.

194 Ind. 626

144 N.E. 22

CAREY

v.STATE.

No. 24460.

Supreme Court of Indiana.

June 5, 1924.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Willie Carey and another were convicted of petit larceny, and named defendant appeals. Reversed, with instructions.

Frank A. Symmes, Arthur R. Robinson, and Garth B. Melson, all of Indianapolis, and Frank S. Roby, of Zionsville, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

EWBANK, J.

An indictment in two counts was returned jointly against appellant and William Ford. The first count charged robbery, alleging that the defendants “feloniously, forcibly, by violence and putting in fear,” stole $1.05 from the person of Cless Ferguson. The second count charged larceny, alleging that defendants “did feloniously take, steal, and carry away” $1.05 belonging to said Ferguson. Being tried by the court without a jury both defendants were found “guilty of petit larceny in the second count of the indictment,” and were sentenced to imprisonment at the Indiana State Farm for a term of one year. Section 2270, Burns' 1914 (chapter 61, Acts 1907, p. 86); section 9926h, Burns' Supp. 1921 (chapter 33, Acts 1919, p. 81).

[1] Appellant has taken a separate appeal, and has assigned as error the overruling of his motion for a new trial, by which he challenged the sufficiency of the evidence to sustain the finding.

The prosecuting witness testified:

That he had known appellant 15 years and Ford 10 or 12 years, and had been with them at different times; that at about 1 o'clock in the early morning he was walking through Military Park, in the city of Indianapolis, on his way home from up town. That he saw appellant and Ford, and spoke to them. That near an alley on West New York street there was a billboard, “and Bill Ford and Willie Carey walked out as far as the curb, and never opened his mouth. Bill Ford put his gun there, and said, ‘Give me what you got.’ I had a paper bill and five cents, and he took it. I had 15 cents in my vest pocket he didn't take. Willie Carey walked out toward the car track. They went on either side of the alley, and I caught a car and went up to police headquarters and reported them. The $1.05 was my property. I was afraid of Ford. These matters occurred in Marion county on or about May 13, 1923. I did not say anything to Ford. He said, ‘Give me what you got,’ and took the $1.05. He did not call me by name. Carey [appellant] did not say a thing; never opened his mouth. He walked out toward the car track.”

Other witnesses testified that Ferguson had given his dollar to Ford before they went to Military Park, as a contribution toward a fund for the purchase of some whiskywhich Ford went to obtain, and became angry when Ford told him that the bottle of whisky got broke, and, after asserting that he was going to have his dollar, boarded the street car, and that appellant gave this account of the transaction when first arrested. There was an intimation that appellant had “a police record” known to the trial judge without being proved, and the prosecuting witness admitted that he had himself been twice convicted, and had served terms of imprisonment for grand larceny and for petit larceny, respectively.

[2][3] Counsel for appellee insist that from the facts proved an inference might be drawn that when Ford made the demonstration of force with a gun, as testified, appellant was “standing by” to give assistance if that should be...