Durke v. State

Citation183 N.E. 97,204 Ind. 370
Decision Date18 November 1932
Docket NumberNo. 25241.,25241.
PartiesDURKE v. STATE.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Delaware Circuit Court; Clarence W. Dearth, Judge.

Harry Durke was convicted of uniting and combining with others for the purpose of committing a felony, and he appeals.Templer & Benadum, of Muncie, for appellant.

Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Asst. Atty. Gen., for the State.

MYERS, J.

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. Section 2882, Burns' 1926. The burglary alleged is defined by section 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 in- cluded 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 l 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 2 and 3 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 4 o'clock the same morning the three left Muncie on an interurban car for Indianaplis, 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 person 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 did not 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 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 prison and was a fugitive for about eight months when he was apprehended and returned to prison. He denied that he and Bill Campbell stole an automobile in Muncie. He admitted testifying before the grand jury that indicted Bill Campbell. He admitted having a conversation with Wolfe at the Yellow Cab office in Muncie about 4 o'clock in the morning of the burglary. After this conversation he went to Eckinberg's Restaurant and from there home. The next day he took a freight train for Richmond and Hamilton. Was in Hamilton eight or nine days, returned to Richmond, and then to Muncie.

Several police officers were called as witnesses on behalf of the state, and each one testified that appellant's reputation for truth and veracity was bad.

Looking to the causes for a new trial, and first to the claimed erroneous admission of evidence, it appears that on...

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7 cases
  • Richardson v. State
    • United States
    • Indiana Supreme Court
    • 1 Octubre 1999
    ... ...          Id. at 585-86, 114 N.E. at 87 ...         In Durke v. State, 204 Ind. 370, 183 N.E. 97 (1932), the defendant was convicted of burglary and then convicted of conspiracy to commit a felony (burglary), arising out of the same transaction. He claimed double jeopardy prohibited the second conviction. The Court noted that "`[t]he courts of this state ... ...
  • Brown v. State
    • United States
    • Indiana Appellate Court
    • 29 Abril 1980
    ... ... This argument is without merit ...         The crime of conspiracy is a separate and distinct offense from the substantive felony which follows it. Lane v. State (1972), 259 Ind. 468 (288 N.E.2d 258). In Durke v. State (1932), 204 Ind. 370 (183 N.E. 97), the Indiana Supreme Court held that prosecution for burglary did not bar prosecution of the same defendant for conspiracy to commit burglary. In light of these decisions, we hold here that one set of operative facts gave rise to two distinct offenses ... ...
  • Cole v. State
    • United States
    • Indiana Appellate Court
    • 18 Diciembre 1975
    ... ... The unified or concerted action of two or more persons is not an element of second degree burglary ... The distinction between these crimes was recognized in Durke v. State (1932), 204 Ind. 370, 378, 183 N.E. 97, 100, where we stated: ... '(I)t must be said that the essential proof in a prosecution for burglary would not be sufficient to convict one charged with the crime known as 'conspiracy to commit a felony'--burglary. in the latter case the evidence ... ...
  • Thomas v. State
    • United States
    • Indiana Appellate Court
    • 13 Marzo 2002
    ... ... Id. at 523, 110 S.Ct. 2084 ...         In Richardson, Justice Boehm contended that an application of the "same conduct" test to subsequent prosecutions is supported by some Indiana authority. Richardson, 717 N.E.2d at 69 (Boehm, J., concurring opinion) (citing Durke v. State, 204 Ind. 370, 183 N.E. 97 (1932); Clem v. State, 42 Ind. 420 (1873); Wininger v. State, 13 Ind. 540 (1859); Thompson v. State, 259 Ind. 587, 290 N.E.2d 724 (1972), overruled by Elmore v. State, 269 Ind. 532, 382 N.E.2d 893 (1978)). In Durke, our supreme court discussed the "identity of ... ...
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