Casterlow v. State, 1169S274

• Citation: 256 Ind. 214,267 N.E.2d 552
• Decision Date: 23 March 1971
• Docket Number: No. 1169S274,1169S274
• Parties: Gary CASTERLOW, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 552

267 N.E.2d 552

256 Ind. 214

Gary CASTERLOW, Appellant, v. STATE of Indiana, Appellee.

No. 1169S274.

Supreme Court of Indiana.

March 23, 1971.

Rehearing Denied May 17, 1971.

Palmer K. Ward, Indianapolis, for appellant.

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

PRENTICE, Justice.

Defendant was convicted of robbery in a trial before the court without the intervention of a jury. On appeal he presents three issues: (1) That the verdict of the court is not sustained by sufficient evidence; (2) That the court erred in admitting into evidence, over objection of defendant, a sum of money of which the defendant claimed to be the owner, and (3) That he was deprived of the right to make an argument to the court at the close of all the evidence.

Defendant properly introduced alibi evidence and contends that the State presented no evidence to refute such alibi by the defendant and, therefore, failed to discharge its burden of proving defendant guilty beyond a reasonable doubt. This is defendant's sole proposition relative to the sufficiency question. Apparently defendant is attempting to assert that the introduction of alibi evidence places upon the State a greater burden of proof than it would otherwise have. If so, he presents no authorities and we are aware of none to sustain such a proposition.

'Strictly speaking, alibi evidence is merely rebuttal evidence directed to that part of the state's evidence which tends to identify the defendant as the person who committed the alleged crime. And in a sense an alibi is adequately covered by a general instruction which declared that the state must prove beyond a reasonable doubt all the essential elements of the offense charged. If a defendant attempts merely to rebut the state's identity evidence by testimony which directly discredits such evidence, there is no suggestion of an affirmative defense; but, when the defendant takes the initiative and, disregarding the state's identity evidence, attempts to set up an independent state of facts inconsistent with the defendant's presence at the time and place of the commission of the alleged crime, this phase of his case is essentially an affirmative defense in form, character, and appeal to the jury. A defendant, however, by resorting to an alibi defense, does not relieve the state of the burden of identifying him, beyond a reasonable doubt, as the perpetrator of the alleged offense.' Witt v. State of Indiana (1933), 205 Ind. 499, 185 N.E. 645.

The State presented the two victims of the robbery, both of whom identified the defendant as the one who committed the robbery charged. We fail to see how the alibi could have been better refuted. Clearly there was no insufficiency of the evidence.

On the day following the robbery the police were called by the defendant to the scene of a disturbance at an auto service station in the same city where the robbery had occurred. Defendant was complaining that someone there had taken money from him. At the suggestion of one of the men present, one of the investigating policemen looked in the restroom where he found currency in excess of $600.00. Defen...