Cross v. State, 29314

• Decision Date: 14 September 1956
• Docket Number: No. 29314,29314
• Citation: 235 Ind. 611,137 N.E.2d 32
• Parties: Herbert CROSS, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 32

137 N.E.2d 32

235 Ind. 611

Herbert CROSS, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 29314.

Supreme Court of Indiana.

Sept. 14, 1956.

Patrick E. Chavis, Jr., Rufus C. Kuykendall, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Harriette Bailey Conn, Deputy Attys. Gen., for appellee.

LANDIS, Chief Justice.

Appellant was charged with the crime of robbery while armed and was convicted of robbery for which he was sentenced to the Indiana State Prison for an indeterminate period of ten to twenty-five years.

Appellant appeals from the judgment of conviction and here contends there was a complete absence of proof in the court below of the necessary elements of robbery.

An examination of the evidence necessary to a consideration of this case reveals that the complaining witness, McCauley, was on July 3, 1954 an employee of a filling station on West Washington Street in the city of Indianapolis. On the night in question McCauley worked at the filling station from 10:00 o'clock at night until 7:00 o'clock the following morning. He was a small man and was alone at the filling station where his duties consisted of operating the station. He was in charge of the money which was in a cash register located near the door, and amounted to $240.36, the money belonging to one Huddleston, the owner of the station. On the morning of July 3, 1954, at approximately 5:30 a. m., two men, one of whom was identified as appellant, pulled up into the driveway with his hand in his pocket, walked inside the door, picked up the cash register, put it under his arm, walked out, threw it into the car, and the two men then entered the car and then drove away. Appellant said nothing to the complaining witness and took his hand out of his pocket when he was returning to the car. The complaining witness saw no gun at any time, but did see appellant with his hand in his pocket, and said appellant had 'that' look on his face. No conversation of any kind took place between appellant and the complaining witness. During the entire period of the offense the complaining witness was standing some thirty feet away from the front door of the filling station. The complaining witness testified he knew what was happening but wasn't about to do anything he could, saying he was too scared. Two policemen who interviewed McCauley ten or fifteen minutes later said McCauley was nervous.

We now proceed to a consideration of appellant's contention that there was no evidence of violence, actual or constructive, or the putting in fear by appellant of the complaining witness, McCauley.

It is well settled that while the principle of robbery is violence, actual violence is not the only means by which a robbery may be effected; that it may also be accomplished by fear, which the law considers as constructive violence.

See Shinn v. State, 1878, 64 Ind. 13; Seymour v. State, 1860, 15 Ind. 288; Hazlett v. State, 1951, 229 Ind. 557, 99 N.E.2d 743.

No contention is made that actual violence was used by appellant in the commission of the alleged robbery, but that it was accomplished by putting McCauley in fear which the law considers as constructive violence.

The expression 'putting in fear' is described in 2 Cooley's Blackstone (4th Ed.) p. 1404, and quoted in State v. Luhano, 1909, 31 Nev. 278, 102 P. 260, 262, as follows:

"* * * And when it is laid to be done by putting in fear, this does not imply any great in fear, this does not fright in the party robbed; it is enough that so much force, or threatening by word or gesture be used, as might create an apprehension of danger, or induce a man to part with his property without or against his consent. * * *"

It is the settled rule that this court will not weigh the...