Davidson v. State

Citation187 N.E. 376,205 Ind. 564
Decision Date03 November 1933
Docket NumberNo. 25897.,25897.
PartiesDAVIDSON v. STATE.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Newton Circuit Court, George A. Williams, Judge.

Howard T. Davidson was convicted of bank robbery, and he appeals.

Affirmed.

Hanley & Hanley, of Rensselaer, for appellant.

James M. Ogden, Atty. Gen., and Merl M. Wall, Deputy Atty. Gen., for the State.

HUGHES, Judge.

The appellant was charged with the crime of bank robbery; was tried by a jury and found guilty. The assignments of error are: (1) The court erred in overruling the appellant's motion in arrest of judgment. (2) The court erred in overruling appellant's motion for a new trial.

The first assignment of error is waived by the appellant, and he relies for a reversal of this cause upon specifications numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 22, 25, 26, 27, 28, 31, 32, 35, and 37, in his motion for a new trial.

Specification No. 1 refers to the admission of State's Exhibits 2 to 7, inclusive, the same being interest coupons from bonds stolen from the State Bank of Rensselaer, Ind., on September 7, 1928. The appellant was arrested in Oklahoma City in February, 1929. In the hand bag of the defendant at the time of his arrest two envelopes were found which contained six interest coupons which had been taken from the Rensselaer bank. Exhibit 1 of the state was the envelope and Exhibits 2 to 7, inclusive, were the interest coupons. To the introduction of these exhibits the appellant objected. The objection was overruled. The theory of the objection to the admissibility of the exhibits was that the charge against the appellant charged him with confining and threatening to confine, kill, maim, and injure certain persons and putting such person in fear for the purpose of stealing property from said State Bank of Rensselaer, Ind.

The contention of the appellant cannot be sustained. The affidavit charged the appellant with the intent to commit larceny by stealing bonds, money, and other valuables, and by putting certain named persons in fear for the purpose of committing larceny. Some five months after the bank robbery, certain coupon interest notes were found in the possession of the appellant.

It has been repeatedly held by this court that when it is proved that property has been stolen, and the same property, recently after the larceny, is found in the exclusive possession of another, a presumption arises that the party in whose possession such property is found is the thief, in the absence of any showing that such possession was innocently acquired. Rosenberg v. State, 192 Ind. 485, 134 N. E. 856, 137 N. E. 53;Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St. Rep. 228;Madden v. State, 148 Ind. 183, 47 N. E. 220;Campbell v. State, 150 Ind. 74, 49 N. E. 905;Johnson v. State, 148 Ind. 522, 47 N. E. 926;Mason v. State, 171 Ind. 78, 85 N. E. 776, 16 Ann. Cas. 1212.

In the case of Mason v. State, supra, the following instruction was approved: “That if the jury found from the evidence to the exclusion of any reasonable doubt that the money described in the indictment was stolen and that such stolen property was found in the exclusive possession of the defendant within a short time after the larceny was perpetrated, such possession imposes on the defendant the duty and burden of explaining his possession of such money; and if he has failed to satisfactorily account as to how he came by the stolen property, this would raise a presumption of fact that the defendant stole the money and this presumption may be strong enough to justify one in finding him guilty, if all the other material averments in the indictment have been proved to be true to the exclusion of any reasonable doubt.”

In the instant case five months elapsed from the time the bonds were stolen until they were found in the possession of the appellant. Does this fact prevent the evidence from being admissible? We do not think so. It is true that most of the cases use the expression “where the stolen property, recently or shortly after the larceny has been committed is found,” etc. If some time has elapsed between the time of the larceny and the finding of the stolen goods, this fact might affect the weight of the evidence but it should not affect its competency. The case of Commonwealth v. Montgomery, 52 Mass. (11 Metc.) 535, 45 Am. Dec. 227, is directly in point upon this proposition. In this case, four months had passed since the commission of the larceny and the finding of the property. In this case the court said: “The possession of a part of the stolen property at a period somewhat distant would be competent testimony to be submitted to the jury, and might, with other sufficient evidence, tend to satisfy them of the guilt of the party. But its weight and effect are very different from that of evidence of possession immediately after the larceny.” In the instant case, the evidence was proper to go to the jury.

It is next insisted that the court erred in admitting in evidence State's Exhibits 17 and 18, the same being newspaper clippings found in appellant's possession when he was arrested. In Exhibit 17 the article refers to bonds that were taken in a “daylight raid on the State Bank of Rensselaer, Iowa,” and in Exhibit 18 the article refers to bonds “taken from the Whitney Trust Company of Rensselaer and State Bank of Atlantic, Iowa.” It is true that the article referred to in the exhibits mentioned Rensselaer, Iowa, but the bonds found in the possession of the defendant belonged to the State Bank of Rensselaer, Ind., and if the defendant was guilty of holding up that bank (and the jury found him guilty), then the most natural thing for him to do would be to keep informed as to what newspapers and officers were doing and saying about the robbery of said bank, and while the newspaper stated that it was the State Bank of Rensselaer, Iowa, the defendant well knew that it meant Indiana. Taken in connection with the finding of the bonds, the newspaper clippings found with them were entitled to be introduced, at least as tending to show knowledge and a guilty conscience.

Any statement or conduct of a person indicating a consciousness of guilt, where at the time or thereafter he is charged with or suspected of the crime, is admissible as a circumstance against him on trial. Evidence of circumstances, which are part of a person's behavior subsequent to an event with which it is alleged or suspected he is connected with or implicated in, are relevant if the circumstances are such as would be natural and usual, assuming the connection or implication to exist. Underhill, Criminal Evidence (2d Ed.) 213.

The appellant predicates error upon the ground that a witness by the name of Harry B. Rouse was permitted to testify in a habeas corpus proceeding that the appellant stated he had never had the bonds in question in his possession. Mr. Rouse was the sheriff who went to Oklahoma City and arrested the appellant. He was present at the habeas corpus proceeding and heard the appellant testify.

The objection to this evidence was that the transcript of the habeas corpus proceedings as taken by the court reporter would be the best evidence and that the evidence given was secondary.

There was no error committed in the admission of this evidence. Where one charged with a crime denies, or gives a false account of, a circumstance or suspicious fact, tending to connect him with the offense, such denial may be regarded as a criminal circumstance proper to go to the jury. McDonel v. State, 90 Ind. 320.

In the conversation with Mr. Rouse the appellant stated that he had never had the bonds in question in his possession, but as a matter of fact they were found in his possession. The rule is that: “Statements and declarations by accused, before or after the commission of the crime, although not amounting to a confession, but from which, in connection with other evidence of surrounding circumstances, an inference of guilt may be drawn, are admissible against him as admissions. Such statements and declarations are original evidence and may be introduced without laying the foundation which is necessary when it is sought to impeach a witness.” 16 C. J. p. 626, § 1243.

The fact, if it be fact, that the evidence of the appellant given in Oklahoma City was taken down by a court reporter and transcribed in longhand would not exclude the oral evidence given by Mr. Rouse. The reporter's notes would be but the written memorandum of a person, taken at the time, under official sanction. It might be more reliable and satisfactory evidence than any testimony from memory, but the latter is not rendered incompetent by the fact of the existence of an official report.

In the case of Wabash R. Co. v. Miller, 158 Ind. 174, 61 N. E. 1005, 1006, the court said: “It is proper to observe that we have no statute which gives legal value to the shorthand notes of an official stenographer in a subsequent trial of the same case, and when such stenographer reads his notes, or refreshes his recollection thereby, he is, in legal effect, doing nothing more or less than repeating, to the best of his ability, what the witness said in his presence.”

No error was committed in the admission of the evidence of Mr. Rouse.

The specifications 5 to 12, inclusive, assigned as reasons for a new trial, are for all intents and purposes the same as set out in specification No. 4, except that the objection was made that the...

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