Durrett v. State

• Decision Date: 01 November 1967
• Docket Number: No. 30542,30542
• Citation: 11 Ind.Dec. 593,230 N.E.2d 595,249 Ind. 12
• Parties: Wilbert Robert DURRETT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 595

230 N.E.2d 595

249 Ind. 12

Wilbert Robert DURRETT, Appellant, v. STATE of Indiana, Appellee.

No. 30542.

Supreme Court of Indiana.

Nov. 1, 1967.

William S. Mercuri, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Edwin K. Steers, Former Atty. Gen., Frederick J. Graf, Former Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

The appellant was charged by affidavit of the crime of grand larceny. He was tried and convicted by a jury and sentenced to serve not less than one nor more than ten years in the Indiana State Reformatory and fined $100.00 and costs.

The appellant assigns as error the overruling of his motion for a new trial. The five items contained therein are grouped under five headings in the appellant's brief, which challenge the sufficiently of the evidence.

For that reason, we first review the evidence most favorable to the State. This shows that Mrs. Alma Helena Siska, on October 10, 1962, discovered that her locked jewelry box in her bedroom had been pried open and certain earrings and some other items were missing. The next day officers from the police department made an investigation and discovered a set of antique earrings at a pawn shop in the city. The earrings conformed to the description Mrs. Siska had made. The operator of the pawn shop positively identified The evidence further showed that Mr. Siska testified that he had purchased the earrings for his wife as a present in Estonia in 1925 on the occasion of the birth of their son; that he paid one hundred and eighty Estonian krone for them, which amounted to at least $200.00 in currency of this country. He identified the earrings. Mrs. Siska also stated: 'Those are mine. I recognize them because I have always cleaned them around the large stone in the middle.' We find no grounds for questioning the identity of the jewelry involved here. There is likewise positive evidence as to the value of the earrings, since Mrs. Siska, the owner, testified that they were worth $200.00 or more.

the appellant Durrett as the man who came into the store on October 10, 1962, the day the theft was discovered, and sold him the earnings, which were identified as State's exhibits. The pawn shop owner testified that the right thumb print on the dealer's pawn card was the appellant's. The appellant admitted that he had sold the earrings to the pawn dealer, but claimed he had purchased them in California. The appellant did not have a receipt for the claimed purchase nor could he identify the alleged seller.

The owner of the pawn shop, an expert, who had purchased these earrings from the appellant, testified:

'* * * as a unit in this antique earring set-up, they could bring anywhere from $200 to $250 * * * as a unit, they would probably sell for around $200 on a resale basis. * * *'

This appears to us to be competent and ample evidence as to the value of the property.

It is urged that there is no proof of how the appellant obtained the jewels, since there was no evidence that he was employed by Mrs. Siska or was ever in the Siska residence. However, the fact is conclusively shown that he did get possession of the jewelry shortly after the theft was discovered.

'Exclusive possession of property shown to have been stolen, shortly after the larceny, unquestionably is a circumstance to be considered by the jury, and if the proof is made that such larceny was recently committed and there is no evidence to explain the possession of the defendants, a larceny conviction based on such evidence will be sustained on appeal.' Mims et al. v. State (1957), 236 Ind. 439, 444, 140 N.E.2d 878, 880; Gilley et al. v. State (1949), 227 Ind. 701, 88 N.E.2d 759.

Some argument is made in the brief that the defendant has no burden of proof in a criminal case. We have here no such question before us. In every successful criminal prosecution there usually comes a time when the State establishes a prima facie case, giving consideration to all legitimate and reasonable inferences that may be drawn from the facts presented, which proves beyond a reasonable doubt that the defendant is guilty. At that point, unless the defendant sees fit to come forward with proof to rebut the prima facie case and convince the jury he is innocent, the jury, from the evidence presented to it, may convict the defendant. It appears to us that was the circumstance here. The State presented such a case. It thereby sustained the burden of proof. The defendant failed to offer any explanation that convinced the jury.

The judgment is affirmed. ^*

LEWIS and MOTE, JJ., concur.

HUNTER, C.J., and JACKSON, J., dissent with opinions.

DISSENTING OPINION

HUNTER, Chief, Justice.

I am unable to concur in the conclusion of the majority opinion and must respectfully dissent.

The majority holds that possession of stolen property shortly after a theft is discovered establishes a prima facie case showing defendant's guilt of the larceny beyond a reasonable doubt, unless he comes forward and rebuts the prima facie case and convinces the jury that they should believe his explanation thus casting upon the defendant the burden of proving his innocence. I know of no such rule of law and upon examination and analysis I do not believe the authorities cited in support thereof sustain such a rule. In Mims et. al. v. State (1957), 236 Ind. 439, 140 N.E.2d 878 and in Gilley et al. v. State (1949), 227 Ind. 701, 88 N.E.2d 759 the stolen items were found in the possession of defendants a few hours after the theft and defendants were linked to the immediate vicinity of the theft. It is well settled that the scintilla of evidence rule does not obtain in Indiana and where the evidence is circumstantial it 'must be so conclusive and compelling in character that it excludes every reasonable hypothesis of the presumption of innocence of the defendant.' Easton v. State (1967), Ind., 228 N.E.2d 6, and cases cited therein.

I read the cases decided by this Court dealing with the inferences arising from possession of stolen property to require other corroborating circumstances pointing to a guilty possession of the property or linking the defendant with the actual taking of the property. In this case, just as Judge Arterburn pointed out in Bruck v. State (1963), 244 Ind. 466, 193 N.E.2d 491:

'* * * we have no conduct on the part of the appellant to arouse any suspicion, other than possession.' Id. at 492.

Since the State's case rests solely on the ground that appellant had possession of a pair of earrings on October 10, 1962 and the exact date of the theft was unknown, I do not find sufficient evidence substantial in character to support an inference of larceny by the appellant. For the foregoing reasons the cause should be reversed and remanded with instruction to sustain appellant's motion for a new trial.

DISSENTING OPINION

JACKSON, Judge.

I am unable to concur in the conclusions of the majority opinion and dissent thereto.

Appellant was charged by affidavit with the crime of Grand Larceny. Trial was had before a jury resulting in a verdict of guilty as charged. The verdict was to the effect that defendant be fined $100.00, and that he be imprisoned for a term of not less than one year nor more than ten years, and that he be disfranchised and rendered incapable of holding any office of trust or profit for five years. The court sentenced the defendant according to such verdict and ordered defendant imprisoned in the Indiana State Reformatory. From such judgment stems this appeal.

The affidavit charging appellant, omitting caption, formal parts and signature, reads as follows:

'* * * says that WILBERT ROBERT DURRETT on or about the 10th day of OCTOBER A.D. 1962 at and in the County of Marion in the State of Indiana did then and there unlawfully, feloniously take, steal and carry away the personal goods and chattels of MRS. JOHANNES SISKA to-wit: ONE (1) PAIR DIAMOND EARRINGS, then and there os the aggregate value of TWO HUNDRED DOLLARS ($200.00) in lawful money, then and there being * * *.'

The applicable criminal statute, under which appellant was charged and found guilty, then read:

'Whoever steals, takes, carries, leads or drives away the personal goods of another of the value of one hundred dollars or upwards is guilty of grand larceny, and, on conviction, shall be fined in any sum not exceeding five hundred dollars and imprisoned for not less than one year nor more than ten years, and be disenfranchised and rendered incapable of holding any office of trust or profit for any determinate period.' Acts 1959, ch. 292, § 1, p. 741.

Appellant tested the sufficiency of the affidavit by Motion to Quash the same, which motion was overruled.

Appellant requested trial by jury.

At the conclusion of the State's evidence the appellant moved the court for a peremptory instruction to the jury directing his acquittal. The court denied the motion.

The defense submitted no testimony and rested, and appellant renewed his motion to the court for a peremptory instruction directing his acquittal. The court overruled the motion.

Appellant's Motion for New Trial, omitting caption, formal parts and signatures, is as follows:

'Comes now the defendant in the above entitled cause and moves the Court for a new trial thereof upon the following grounds and for the following reasons:

'1. The verdict of the jury is contrary to law.

'2. The verdict of the jury is not sustained by sufficient evidence.

'3. The Court erred in overruling defendant's motion for peremptory instruction to the jury for acquittal of defendant at the close of the State's case.

'4. The Court erred in overruling defendant's motion for peremptory instruction to the jury for acquittal of the defendant at the conclusion of all the evidence.

'5. The Court erred in admitting into evidence State's Exhibits numbered 2A & 2B, over the objection of the defendant.

'WHEREFORE, the defendant prays the Court for a new trial of said cause.'

The court overruled the motion ...