Cotton v. State

• Decision Date: 05 November 1965
• Docket Number: No. 30507,30507
• Citation: 247 Ind. 56,211 N.E.2d 158
• Parties: Charles Wayne COTTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 158

211 N.E.2d 158

247 Ind. 56

Charles Wayne COTTON, Appellant, v. STATE of Indiana, Appellee.

No. 30507.

Supreme Court of Indiana.

Nov. 5, 1965.

Don R. Money, of Money, Orr & Bridwell, Indianapolis, for appellant.

Edwin K. Steers, Att. Gen., Edgar S. Husted, Deputy Atty. Gen., for appellee.

MYERS, Judge.

This is an appeal from a judgment of the Marion County Criminal Court, Division Two, wherein appellant was sentenced to the Indiana State Prison for not less than two nor more than five years upon a finding and conviction of grand larceny and second degree burglary.

There were two other defendants, by name of Jack Lewis Dearing and Freddie Neal McKinney, who were charged jointly with appellant, by affidavit, with having committed the same offenses. All three were tried together before the court without the intervention of a jury and found guilty. Appellant duly filed his motion for new trial on the grounds that the finding of the court was not sustained by sufficient evidence and was contrary to law. The assignment of errors is based upon the overruling of the motion for new trial.

The evidence most favorable to the State reveals that on December 15, 1962, there was a store located at 5437 West Washington Street, in Indianapolis, Indiana, known as the Guarantee Automobile Store. It contained articles of personal property, among which were two television sets and a stand. The manager had locked the doors of the store upon leaving it that evening at the close of business hours. He returned the following morning at 4:00 a. m. to find a Deputy Sheriff at the premises. The front door of the store had been pried open and the two television sets and stand were missing. It was established that their value was over $100.

Two Deputy Sheriffs were making a routine check of the shopping center where the store was located on December 16, 1962, around 3:40 a. m. In an alley they saw appellant and the other two defendants in a car leaving the rear of the store headed east with no headlights on. The officers turned on their red light. One of them stepped out of the police car in an attempt to halt the defendants, but they almost ran him down. The officers thereupon chased them at a high rate of speed for about a mile. The defendants lost control of their car and hit a telephone pole forcing them to stop. As the officers approached the automobile, they saw appellant and the two other defendants therein. Also in the back seat were the two television sets and stand. Appellant was in the passenger side of the front seat, defendant McKinney was driving the car, while defendant Dearing was in the back seat with the stolen goods. All three were placed under arrest on a preliminary charge of burglary.

After the three were out of the car, they were questioned by the Deputies. McKinney and appellant did not say anything then, but later talked to the officers. The substance of this conversation is not contained in the record. However, one of the officers, Philip Cress, stated that defendant Dearing told him that the television sets had come from the Guarantee Automobile Store on West Washington Street. The pertinent part of his testimony is as follows:

'Q. Did you have a conversation with any of the defendants in this case?

'A. I had conversation with Mr. Dearing.

'THE COURT: Who?

'A. Mr. Dearing.

'Q. Where and when?

'A. At Martha and Lynhurst, after the car was stopped.

'Q. Were the other defendants present?

'A. Yes, they were.

'Q. What was said?

'A. I asked Mr. Dearing where the television sets came from. He told me from the Guarantee Auto Store on West Washington.

'Q. Did he say how they came in their possession?

'A. He stated they had pried the front door open.

'Q. Who did he mean when he said they?

'A. McKinney, Cotton and Dearing.

'Q. Was this said in the hearing of all the defendants?

'A. In the presence, yes.' (Our emphasis.)

On cross-examination, Deputy Cress stated that all three defendants were 'altogether in a group of about three feet' when Dearing was being questioned, and that in his opinion they were 'in hearing distance.' Upon being asked if in fact Dearing told the officer that he, Dearing, 'got the stuff himself,' the answer was:

'He used the word 'we" and he 'repeated it several different times.'

An attempt was made to show that Dearing was perhaps hard of hearing and might not have understood the question. But the Deputy said the reason Dearing repeated it so many times was because the Deputy wanted to make sure that Dearing heard him. At the time of questioning, Dearing was handcuffed.

Appellant testified on his own behalf. He said that he and McKinney had been drinking beer and whiskey all afternoon and evening; that Dearing had been with them earlier, but went to his home in the afternoon; that Dearing joined them about 2:00 a. m. on the morning in question; that they drove around and he, appellant, 'passed out' in the car; that he had nothing to do with the matter and did not assist any one putting the property in the car; that he was under the influence of intoxicating liquor at the time of his arrest, and did not hear the officer interrogating Dearing.

Defendant McKinney testified on behalf of appellant, stating that he knew nothing about the burglary or larceny as he had been drinking all day until 2:00 o'clock in the morning. He admitted he had been driving the car, but said he was under the influence of alcohol. He further stated that he did not know how the property got in the rear of the car, but that Dearing had put it there; that he did not know where Dearing got it.

Defendant Dearing testified that on the morning in question, he and the other two defendants were sitting in the car about a block past the shopping center. They had been drinking. Dearing left the car at which time appellant had 'passed out.' Dearing pried upon the door to the store building, using a tire tool, and took two television sets from the building which he put in the car. He identified the sets in the court room. He said his memory was not too clear due to heavy drinking all evening. He told McKinney to drive between the two buildings which was when the Deputy Sheriff saw them. Dearing stated that he alone took the stolen property and the others had nothing to do with it. He denied that he told the Deputy that the others were involved. At the time, he was out on bond from a charge of robbery, but at date of trial was serving a ten-year sentence at the Reformatory for the offense of being armed during the commission of a felony.

Appellant grouped into one argument the specifications of error in the motion for new trial that the finding of the court was not sustained by sufficient evidence and was contrary to law.

It is claimed that there is no evidence or testimony in the transcript that appellant was guilty of breaking or entering the Guarantee Automobile Store. Appellant attempts to take refuge in the testimony submitted by him denying that he had any part in the breaking and entering the store and stealing the television sets because he was under the influence of intoxicating liquor and 'passed out' at the time. He argues that there was no knowledge or intent on his part merely because he was on the scene of the crime at the time and place.

First, we shall take up the matter of drunkenness as a defense. The general rule is that it is no excuse for the commission of a crime. Dobbs v. State (1957), 237 Ind. 119, 124, 143 N.E.2d 99. It may be considered where a specific intent is involved, but that is a question of fact to be determined by the jury or court trying the case upon a consideration of all the evidence. Booher v. State (1901), 156 Ind. 435, 446, 60 N.E. 156, 54 L.R.A 391. Here, the court which tried the case and heard the witnesses did not find there was sufficient evidence to relieve appellant of intention to commit a crime due to...