Ellis v. State, No. 169
| Docket Nº | No. 169 |
| Citation | 252 Ind. 472, 250 N.E.2d 364 |
| Case Date | September 03, 1969 |
| Court | Supreme Court of Indiana |
Page 364
v.
The STATE of Indiana, Appellee.
[252 Ind. 473] John G. Bunner, Evansville, for appellant.
Theodore Sendak, Atty. Gen., William F. Thompson, Deputy Atty. Gen., for appellee.
ARTERBURN, Judge.
Appellant was charged by affidavit with the crime of second degree arson. After a trial by the court [252 Ind. 474] the appellant was found guilty and judgment rendered accordingly.
Appellant's sole assignment of error is that the trial court erred in overruling his motion for new trial. The two grounds given in the motion for new trial are that the decision of the court is not sustained by sufficient evidence, and that it is contrary to law.
The evidence in the case showed that Audrey Nance, who lives across the street from McClure's Memorial Baptist Church, was in bed listening to the radio at approximately one a.m. when she heard a window break. She got out of bed and looked out the front door. She saw a man on a ladder going into the church. The ladder broke and the man jumped down. He then replaced the ladder against the church and climbed in. Mrs. Nance testified that she was able to hear the man's feet hit the floor when he jumped down from the window.
Page 365
Mrs. Nance informed her next door neighbor, Mrs. Thomas, as to what she had observed. As she returned from her neighbor's home, she saw 'a light of some kind' flashing on the front doors of the church. At the same time she saw the man unlock the front door of the church and get into his car. Very shortly thereafter she observed smoke coming from the church. A fire in the church was soon visible, which caused extensive damage.Mrs. Nance testified that the car the man used was a light blue Falcon. The man got into the car and drove back and forth in front of the church. On his third trip Mrs. Nance wrote down the license number of the car. Althouth Mrs. Nance could not see the man's face, she testified that the man was wearing a dark suit, white shirt, and a tie.
Audrey Nance testified in the trial court as to what she had observed. Her testimony was corroborated by her neighbor, Mrs. Thomas.
After the policemen and firemen had arrived at the scene, the appellant was seen near the church. He so interfered [252 Ind. 475] with the duties of the firemen and policemen that he was repeatedly asked to leave. While appellant was watching the fire someone made a remark about the appellant's presence. Appellant reacted to this remark by jumping in his car, backing up rapidly, turning the car around, and quickly driving off. Witnesses testified that he squealed his tires and burned rubber during his departure.
Appellant was apprehended by police officers who had received a dispatch to look for a light blue Falcon bearing a Kentucky license plate, number 575 796. He was then returned to the scene of the fire where Audrey Nance identified his clothing as the same she had seen previously. His car was identified by two witnesses as the same vehicle that had been seen earlier.
A fire inspector for the Evansville Fire Department investigated the building immediately after the fire was extinguished and as a result of such inspection testified that the fire had started at three different locations on two floors of the church:
'Q. Were you able to determine where the fire started?
'A. Three different locations.
'Q. And would you describe these locations?
'A. Yes, sir, one was to the left of the door in the basement in a cloak room, the second was on the first floor to the left in a closet, and the third location was in the, I don't know exactly how to describe it, on the table in the basement.'
To rebut this evidence appellant filed a notice of alibi which stated that he was at the American Legion Home between midnight and 2:00 a.m. on the 19th day of May, 1968. However, the manager of the American Legion testified[252 Ind. 476] that he did not recall seeing the appellant during those hours.
Appellant alleges that although the evidence is undisputed that he was at the scene of the fire, there is no evidence to show that appellant actually set the fire. The appellant admits that the identification need not always be positive and direct, but contends that it must be of such a substantial nature that the trier of the fact has in his mind no reasonable doubt and there can be no reasonable hypothesis other than the guilt of the defendant.
We agree with appellant that the identification must be of such a substantial nature as to remove any reasonable doubt. This identification satisfies that criteria. It has long been the rule in this state that an identification may be established by circumstantial evidence. Craig v. State (1908), 171 Ind. 317, 86 N.E. 397; Mason v. State (1963), 244 Ind. 206, 191 N.E.2d 705.
The evidence presented in the trial court is uncontradicted. An eyewitness saw a
Page 366
man dressed like the appellant depart through the front door of the church shortly before the fire....To continue reading
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Fox v. State, No. 2-376A109
...Kapp's argument that the evidence is insufficient to establish a willful and malicious burning. Kapp properly cites Ellis v. State, (1969) 252 Ind. 472, 250 N.E.2d 364, as authority for the proposition that the law of Indiana presumes that a fire accidentally resulted from some providential......
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Harrison v. State, No. 65S00-9605-PD-318
...which the fire marshal relied, the fire would have been presumed accidental." With or without this legal presumption under Ellis v. State, 252 Ind. 472, 477, 250 N.E.2d 364, 366 (1969), overruled in part on other grounds by DeVaney v. State, 259 Ind. 483, 489-90, 288 N.E.2d 732, 736-37 (197......
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Jones v. State, No. 868
...necessary to show it was intentionally set afire in violation of the law.' For a recent case in point see: Ellis v. State (1969), Ind., 250 N.E.2d 364. In this case the appellant was charged with murder in the first degree, specifically in the attempt to commit a robbery. The statute, Burns......
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Beasley v. State, No. 576S155
...It has been held in previous cases that an identification can be made by the surrounding circumstantial evidence. Ellis v. State, (1969) 252 Ind. 472, 250 N.E.2d Although the defendant correctly contends that evidence sufficient only to establish a mere suspicion of guilt is not sufficient ......
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Fox v. State, 2-376A109
...Kapp's argument that the evidence is insufficient to establish a willful and malicious burning. Kapp properly cites Ellis v. State, (1969) 252 Ind. 472, 250 N.E.2d 364, as authority for the proposition that the law of Indiana presumes that a fire accidentally resulted from some providential......
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Jones v. State, 868
...necessary to show it was intentionally set afire in violation of the law.' For a recent case in point see: Ellis v. State (1969), Ind., 250 N.E.2d 364. In this case the appellant was charged with murder in the first degree, specifically in the attempt to commit a robbery. The statute, Burns......
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Harrison v. State, 65S00-9605-PD-318
...which the fire marshal relied, the fire would have been presumed accidental." With or without this legal presumption under Ellis v. State, 252 Ind. 472, 477, 250 N.E.2d 364, 366 (1969), overruled in part on other grounds by DeVaney v. State, 259 Ind. 483, 489-90, 288 N.E.2d 732, 736-37 (197......
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Beasley v. State, 576S155
...It has been held in previous cases that an identification can be made by the surrounding circumstantial evidence. Ellis v. State, (1969) 252 Ind. 472, 250 N.E.2d Although the defendant correctly contends that evidence sufficient only to establish a mere suspicion of guilt is not sufficient ......