Cazak v. State , 24463.

• Decision Date: 31 March 1925
• Docket Number: No. 24463.,24463.
• Citation: 196 Ind. 63,147 N.E. 138
• Parties: CAZAK v. STATE.
• Court: Indiana Supreme Court

196 Ind. 63

147 N.E. 138

CAZAK

v.STATE.

No. 24463.

Supreme Court of Indiana.

March 31, 1925.

Appeal from Criminal Court, Lake County; M. J. Smith, Judge.

Tony Cazak was convicted of automobile banditry, and he appeals. Affirmed.

McAleer, Dorsey, Gillett & Chapin, of Hammond, for appellant.

U. S. Lesh, Atty. Gen., for the State.

WILLOUGHBY, J.

This was a prosecution by affidavit for automobile banditry as defined in chapter 32, Acts 1921. See Acts 1921, p. 91. On a plea of not guilty the defendant was tried by jury, which trial resulted in a verdict of guilty, upon which judgment was entered and from which this appeal is taken.

The only assignment of error is that the court erred in overruling appellant's motion for a new trial. The only specifications discussed in appellant's brief are: (1) That the verdict is not sustained by sufficient evidence and is contrary to law; (2) that the court erred in giving to the jury instruction No. 2.

[1][2][3][4][5] Under the specification that the verdict is not sustained by sufficient evidence, the appellant claims that he was not sufficiently identified. However, a witness testified that she was in the bank at the time of the robbery, and that the appellant was one of the robbers, and that he was dressed in woman's clothes.

This witness testified in part as follows:

“I was in the First National Bank of Dyer on December 20, 1922, about 3 o'clock in the afternoon on business. I saw that man right there (indicating the defendant) in the bank. He had women's clothes on. There were three men in the bank. They were right inside closing the vault. When they closed the vault they started away slowly walking backwards. I saw one of the party dressed as a woman. He was the last person to get in the machine. Two shots were fired. When the last was fired, the person dressed as a woman was just going into the machine. They started off going toward Chicago Heights. I am sure this defendant was the man I saw there dressed as a woman.”

The defendant testified that he was in another place in bed asleep at the time of the robbery. There was other testimony denying the state's evidence, but it is within the province of the jury to determine what evidence they will believe and what they will not believe, and this court on appeal will not weigh evidence, but when a question of the sufficiency of the evidence to sustain the verdict is presented, it will consider only that evidence favorable to the prevailing party. Lee v. State, 190 Ind. 531, 131 N. E. 3;Howard v. State, 191 Ind. 232, 131 N. E. 403;Small v. State, 190 Ind. 406, 130 N. E. 401.

There was some evidence tending to prove every material allegation of the affidavit, and the evidence was therefore sufficient to...