Cowherd v. State, 569S124

• Decision Date: 08 April 1970
• Docket Number: No. 569S124,569S124
• Citation: 256 N.E.2d 679,253 Ind. 693
• Parties: Michael COWHERD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 679

256 N.E.2d 679

253 Ind. 693

Michael COWHERD, Appellant, v. STATE of Indiana, Appellee.

No. 569S124.

Supreme Court of Indiana.

April 8, 1970.

Don R. Money, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Murray West, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Chief Justice.

This is an appeal brought by appellant, Michael Cowherd, from a conviction in the Marion Criminal Court, Division Two, of the crime of robbery. Appellant was tried by the court without the intervention of a jury and found guilty as charged. He was sentenced to the Indiana Reformatory for not less than ten years, nor more than twenty-five years.

Appellant filed a timely motion for new trial which was overruled by the trial court, and he is assigning as error in this appeal the overruling of said motion. The single question raised by appellant before this court is whether there is sufficient evidence to sustain the court's judgment of conviction.

The indictment under which appellant was charged omitting the caption reads as follows:

'* * * that * * * Michael Cowherd on or about the 4th day of September, A.D. 1968, at and in the County of Marion and in the State of Indiana, did then and there unlawfully, feloniously, forcibly by violence and putting CHARLES E. DURICK in fear take from the person and possession of the said CHARLES E. DURICK money and a watch, then and there of the value of One Hundred Ten ($110.00) Dollars in lawful money, which property the said CHARLES E. DURICK then and there lawfully held in his possession and was then and there the property of CHARLES E. DURICK, * * *'

The crime of robbery is found at Ind.Ann.Stat. 10--4101 (1956 Repl.) which reads in pertinent part:

'Robbery * * * Whoever takes from the person of another any article of value by violence or by putting in fear, is guilty of robbery, and on conviction shall be imprisoned not less than ten (10) years nor more than twenty-five (25) years, and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period. * * *'

The elements of robbery as set out by the above statute are: (1) the taking from the person of another; (2) an article of value; (3) by violence or putting in fear. Locke v. State (1969), Ind., 250 N.E.2d 372. In order to sustain the verdict of guilty in a criminal trial, each element of the crime charged must be established by substantial evidence of probative value, so as to convince the trier of fact of its existence beyond a reasonable doubt. If reasonable men might differ as to whether or not the body of the evidence is sufficient upon which to base a conviction of an accused, the judgment of guilty will not be set aside; if however, no reasonable men could be convinced from the evidence of the guilt of the accused beyond a reasonable doubt, judgment must be reversed as not being sustained by sufficient evidence. Manlove v. State (1968), Ind., 232 N.E.2d 874; Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6; Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641.

In looking at the sufficiency of the evidence, this court on appeal will examine only that evidence and the reasonable inferences deducible therefrom which is most favorable to the state. Carter v. State (1968), Ind., 234 N.E.2d 850; Capps v. State (1967), 248 Ind. 472, 229 N.E.2d 794; Beatty v. State (1963), 244 Ind. 598, 194 N.E.2d 727. We will not weigh the evidence, nor determine the credibility of witnesses. Leaver v. State (1968), Ind., 237 N.E.2d 368; Stock v. State (1966), 247 Ind. 532, 219 N.E.2d 809.

The facts as viewed most favorable to the state reveal the following: the state's prosecuting witness, Charles E. Durick, testified that on September 4, 1968, at approximately 11:30 P.M., he was returning to his apartment at North...