Durke v. State
| Decision Date | 18 November 1932 |
| Docket Number | 25,241 |
| Citation | 183 N.E. 97,204 Ind. 370 |
| Parties | Durke v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied January 31, 1933.
1. CRIMINAL LAW---Review of Evidence---Harmless Error---Cross-Examination.---Defendant on a charge of conspiracy to commit burglary, on cross-examination, denied that he and another had stolen an automobile, and was then asked if he had testified before the grand jury in that case to which he answered "yes." The question and answer was held harmless since his testifying before the grand jury did not tend to an inference that he was connected with the larceny and did not tend to impeach his denial of the theft p. 375.
2. CRIMINAL LA---Character of Accused---Credibility as Witness---Impeachment by Particular Acts.---Cross-examination of defendant in trial for conspiracy to commit burglary to the effect that he had exchanged "hot gold" for currency at a bank was admissible only on theory of affecting defendant's credibility as a witness. p. 376.
3. CRIMINAL LAW---Trial---Province of Court and Jury---Credibility of Witnesses.---The credibility of witnesses is a question for the trial court and jury alone p. 376.
4. CONSPIRACY---Variance of Proof---Acts without State.---In an action for conspiracy to commit burglary "within this state," testimony of co-conspirator that stolen property was disposed of by them without the state, was held proper, as the conspirators were still acting in concert. p. 376.
5. BURGLARY---Disposal of Property---State Lines.---State lines can have no influential effect either for or against one disposing of burglariously obtained property. p. 376.
6. CRIMINAL LAW---Former Jeopardy---Distinct Offenses Growing out of Same Transaction.---Where two several and distinct offenses grow out of the same transaction, a judgment rendered on one will not bar a prosecution on the other. p. 377.
7. CRIMINAL LAW---Former Jeopardy---"Identity of Offense" Test.---The "identity of offense" test, favored by the courts of this state in determining the question of former jeopardy, is that the second charge shall be for the same identical act as that charged in the first, the question being whether the same evidence would be necessary to secure a conviction in the pending, as in the former prosecution. p. 378.
8. CRIMINAL LAW---Former Jeopardy---Identity of Offenses---Conspiracy and Burglary.---An acquittal of a charge of burglary will not bar a subsequent prosecution for conspiracy to commit burglary growing out of the same transaction as they are separate and distinct offenses requiring different proof in each. p. 378.
From Delaware Circuit Court; Clarence W. Dearth, Judge.
Harry Durke was convicted of conspiracy to commit a felony (burglary), and he appealed.
Affirmed.
Clarence E. Benadum and Edward R. Templer, for appellant.
Arthur L. Gilliom, Attorney-General, and Harry L. Gause, Deputy Attorney-General, for the State.
Appellant and two others, in the court below, were charged by affidavit with uniting and combining with each other for the purpose of committing a felony. Sec. 2882 Burns 1926. The burglary alleged is defined by § 2447 Burns 1926. Appellant had a separate trial before a jury which found him guilty and his age 25 years. His motion for a new trial was overruled, and judgment followed, fixing his fine at $ 100 and imprisonment in the Indiana Reformatory for a period of not less than two nor more than fourteen years. Application for bail granted, bond tendered and approved by the trial court.
The only error assigned and relied on by appellant is the action of the court in overruling his motion for a new trial. The causes in this motion and not waived are: that the court erred in admitting evidence; in refusing to admit certain proffered evidence; and that the verdict is contrary to law.
A brief statement taken from the evidence in this case before the jury may serve to a better understanding of the questions here presented and our rulings thereon. One of the persons included in the affidavit with appellant testified that Durke, another and himself met at a cigar store in Muncie and decided they wanted some grain alcohol. Some one of the three said that it could be had at Campbell's Drug Store. Later in the evening the three met, and at about one o'clock the next morning they went to the drug store and shoved the front door in. All three participated in this act. Witness remained on the outside and the other two entered the store, and after some fifteen or twenty minutes came out saying they could not find the alcohol. They again entered the store and came out with their pockets full of fountain pens and "money orders." The witness and appellant, between two and three o'clock the same morning, hid the booty so taken from the store under the Jackson school steps. Later, the fountain pens and money orders were repossessed and divided among the three. About four o'clock the same morning the three left Muncie on an interurban car for Indianapolis where they disposed of some of the fountain pens and cashed one money order for $ 45. They then went to Louisville, Ky., where two money orders were cashed, one by appellant for $ 15. From Louisville they went to Cincinnati, Dayton, and Detroit, where two more money orders amounting to $ 100 were cashed. Witness was arrested while in a certain clothing store at Detroit. Appellant was in the store at the time but left and was not arrested until he returned to Muncie. Witness was brought back to Muncie and placed in jail along with appellant where he says they had several conversations concerning the robbery. Fountain pens were introduced in evidence. Witness stated they looked like a part of the loot taken from Campbell's Drug Store. One of the pens in evidence was taken from appellant. Some of the less important items of witness' testimony were corroborated by other evidence.
Mr. Campbell, owner of the drug store, described the condition in which he found the door the morning following the robbery; that the glass in the fountain pen case had been crushed and many of the pens and about seventeen money orders had been taken; that the fountain pens exhibited at the trial were of the same make and character of the ones they carried in stock. A Mr. Everson, chief detective of the Muncie police force, testified that he was at the police station when appellant was brought there by the officers. He asked him (appellant) where he had been and who was with him, and he said he was with Tex Hiatt and Spud Wolfe. (These two persons are included in the affidavit with appellant.) He said they went to Indianapolis, and from Indianapolis to Louisville, Louisville to Cincinnati, and Cincinnati to Detroit. He then testified that a few days before that he was present when appellant was being tried for burglary. He identified a lady's fountain pen which he said had been taken from appellant, but did not know where appellant obtained it. A Mr. Cunningham testified that he was a police officer in the detective department at Muncie; that he had known appellant three or four years; arrested him on this charge; had a conversation with him in which he said he would prove that Wolfe and Hiatt did the job; that he didn't know anything about it; that he was not in Muncie at the time of the robbery but later was in Detroit with Hiatt and Wolfe. Witness, a few days before, was in the courtroom when appellant was being tried for burglarizing Campbell's Drug Store, but was not called as a witness. That case was dismissed.
Appellant testified in his own behalf in which he denied in detail all of Wolfe's testimony in any manner connecting him with the Campbell Drug Store burglary. Denied the conversation detailed by each of the detectives. He claimed the fountain pen which the officers took from him was a present from his aunt, and that he was never in the drug store. On cross-examination he was asked about getting $ 120 "hot gold" from one Robert Koker, at whose request he exchanged the same for currency at the Delaware Bank in Muncie, and for which he received $ 10. He admitted getting the gold and $ 10 with which to buy a pair of shoes, but denied any knowledge of its having been stolen or taken from a bank at Hamilton, Ohio. He admitted having been convicted in the Federal Court for burglarizing a box car and sentenced to prison for three years at Atlanta, Ga. He escaped from...
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