Dillon v. State, 1270S303

• Decision Date: 24 November 1971
• Docket Number: No. 1270S303,1270S303
• Citation: 257 Ind. 412,275 N.E.2d 312
• Parties: John R. DILLON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 312

275 N.E.2d 312

257 Ind. 412

John R. DILLON, Appellant, v. STATE of Indiana, Appellee.

No. 1270S303.

Supreme Court of Indiana.

Nov. 24, 1971.

E. Kent Moore, Lafayette, for appellant.

Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

Appellant was charged by affidavit with Theft by Deception on September 30, 1968. Appellant pleaded not guilty to the charge and requested trial by jury. Trial began on June 9, 1970, in the Superior Court of Tippecanoe County. On June 11, 1970, the jury returned a verdict of guilty as charged. Appellant was then sentenced to the Indiana State Prison for not less than one (1) nor more than ten (10) years, and disfranchised for one year and ordered to pay the costs of the action. On August 24, 1970, appellant filed a Motion to Correct Errors, which was amended on September 22, 1970. The Motion to Correct Errors was overruled on September 22, 1970, and it is from the ruling that this appeal was taken.

Briefly stated the facts relevant to the issues presented by the appellant are set forth in the following: On September 17, 1968, Clara E. Killian received a phone call from a man who identified himself as 'Mr. Summers' of the Purdue National Bank. Mrs. Killian was told there was some confusion over a check she allegedly had written in the amount of one thousand five hundred (1,500.00) dollars, and the caller reviewed the current balance of her account. Mrs. Killian was asked to go to the bank, and was told that a bank car would come to pick her up. A short while later, Mrs. Killian received a second call, asking her help in catching a suspected check forger who had been tampering with her account. Mrs. Killian was told that the bank suspected that a man was carrying on an affair with the wife of a bank vice-president, and was desperate for money. To assist in catching the man, Mrs. Killian, was told to cash a check for one thousand five hundred (1,500.00) dollars, and meet the caller at a nearby street corner. A short while later a taxi came to pick up Mrs. Killian. Mrs. Killian then went to the bank and cashed a check in the amount of one thousand five hundred (1,500.00) dollars, and then proceeded to the designated corner to meet the man who had called her. On the corner, Mrs. Killian was met by a man who said he had been sent in place of Mr. Summers, who had been detained. The man opened his coat, showing Mrs. Killian a badge, and telling her he was from the F.B.I. The man suggested they have lunch together. They then proceeded to a nearby hotel coffee shop. In the coffee shop, the man asked Mrs. Killian if she had gotten the money. Upon learning that she had, he suggested that she hand it over to him, which she did. The man also suggested that Mrs. Killian give him her checkbook, so that it could be used to help clarify her checking account. After obtaining Mrs. Killian's checkbook, the man left with the one thousand five hundred (1,500.00) dollars, and the checkbook. At trial, over appellant's objection Mrs. Killian was permitted to testify as to, among other things, the above facts.

Although Mrs. Killian had been unaware of it, her withdrawal of one thousand five hundred (1,500.00) dollars had prompted concern of the bank employees, who had tried to learn why she needed the $1,500.00 in cash, instead of accepting a cashier's check for the amount. The head teller and another employee followed Mrs. Killian from the bank. Outside the bank, the employees saw the Lafayette Police Chief passing by and stopped him, telling him of what had transpired. The police chief and the head teller, who was a former police officer, followed Mrs. Killian and the man she met on the street corner to the coffee shop. When the man left the coffee shop the police chief followed him, while the bank employee went into the coffee shop and asked Mrs. Killian if she had given the one thousand five hundred dollars (1,500.00) to the man. She said she had and stated the reasons why. Meanwhile, the police chief was following the man through the streets. Finally, the police chief stopped the man and asked him for some identification. The man's identification showed his name was Dillon and that his address was Chicago, Illinois. The man said he was a rug salesman and was trying to sell Mrs. Killian some carpet. The man willingly agreed to walk back to the coffee shop with the police chief. Upon returning to the coffee shop, the bank employee told the police chief, in the presence of the appellant, that Mrs. Killian had given the one thousand five hundred (1,500.00) dollars and her checkbook to the man and that he represented that he was an F.B.I. agent attempting to investigate a fraud in her checking account. The police chief then asked the man if he had Mrs. Killian's checkbook, whereupon, the man pulled it from his pocket. He then asked the man if he had the money. The man reached into his pocket and pulled out the money and placed it inside the checkbook. The police chief told the man to put the checkbook and the money back in his pocket until they asked for them. The police chief asked the man and Mrs. Killian to go to the police station with him. At the police station, the man who was the appellant, Dillon, was informed that he was being charged, and asked him to empty his pockets. In appellant's possession was the one thousand five hundred (1,500.00) dollars and Mrs. Killian's checkbook. After hearing Mrs. Killian's story regarding the appellant's showing her an F.B.I. badge, the police chief searched the car used to take the appellant to police headquarters. This search was made on September 18, 1968, the day following the alleged crime. The police chief found a gold F.B.I. badge on the floor of the car behind the front seat, where the appellant had been sitting. This gold badge and the checkbook and money were introduced and admitted into evidence, over appellant's objections.

Appellant urges that the trial court erred in the admission of certain evidence. Specifically, appellant's urging presents four issues for our consideration.

(1) Whether the testimony of Mrs. Killian should have been stricken as irrelevant and inadmissible because the record does not show that she designated the appellant as the man who committed the crime.

(2) Whether State's exhibit number two, Mrs. Killian's checkbook, should have been held inadmissible because there was no probable cause for an arrest.

(3) Whether certain statements made by the defendant should have been held inadmissible because of a failure to give him his Miranda warnings.

(4) Whether admission of State's exhibit number three, the gold F.B.I. badge, was improper because of remoteness.

First, we shall consider appellant's urging that Mrs. Killian's testimony, concerning the transaction, should have been stricken. We find no merit in appellant's urging. The record with unmistaken clarity establishes that Mrs. Killian identified the appellant as the man to whom she gave her money and checkbook. Without setting out all the numerous occasions in the course of Mrs. Killian's testimony in which she specifically referred to the appellant as the man to whom she gave her money, we shall set forth the following portion of the record, as an example. Direct examination of Mrs. Killian:

Q. '* * * the man in the police car at that time was the same man that you'd been in the Java Shop (the coffee shop) with earlier then?'

A. 'Yes, yes.'

Q. 'Was it the same man you had given the money to?'

A. 'Yes.'

The police chief and bank employee testified that the man in the police car was the man who they had seen with Mrs. Killian, in the coffee shop, and identified the appellant, in court, as being that same man. Appellant is entirely correct in his assertion that the state has the burden of proof in a criminal action, to prove all elements of the offense charged and to show that the crime was committed by the accused, however, in the instant case there was ample evidence to establish that it was in fact appellant who committed the crime.

Appellant next contends that Mrs. Killian's checkbook should not have been admitted in evidence, because it was given to the police, prior to his arrest and at a time when there was no probable cause for his arrest. We find no merit in appellant's urging. First, we note that the record discloses that the checkbook was recovered at the police station as part of an 'inventory' of items given by the appellant to the police to be taken in custody for safekeeping. Appellant was under arrest at this time. It appears that appellant urges that there was no arrest because the record does not disclose that someone took hold of his body and said 'you are under arrest.' Appellant is in obvious error in this urging. Burns' Ind.Stat.Ann., sec. 9--1004, IC 1971, 35--1--17--1, defines an arrest in the following manner:

"Arrest' defined.--Arrest is the taking of a person into custody, that he may be held to answer for a public offense. (Acts 1905, ch. 169, § 120 p. 584.)'

Burns' Ind.Stat.Ann., sec. 9--1005, IC 1971, 35--1--19--1, provides that an arrest is made in the following manner.

'Arrest--How made.--An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, but the defendant shall not be subject to any more restraint than is necessary for his arrest and detention. (Acts 1905, ch. 169, § 127, p. 584).'

There is no question, under the circumstances, of the instant case as to whether the appellant was in fact under arrest at the time he emptied his pockets in the police station. Failure to inform a defendant that he is 'under arrest' does not in every case mean that he was not...