Fair v. State, No. 867S73

Docket NºNo. 867S73
Citation252 Ind. 494, 250 N.E.2d 744
Case DateSeptember 17, 1969
CourtSupreme Court of Indiana

Page 744

250 N.E.2d 744
252 Ind. 494
Orlando Frederick FAIR, Appellant,
v.
STATE of Indiana, Appellee.
No. 867S73.
Supreme Court of Indiana.
Sept. 17, 1969.

[252 Ind. 495]

Page 745

Cecil A. Taylor, Hall Cochrane, Indianapolis, for appellant.

Theodore L. Sandak, Atty. Gen., Duejean C. Garrett, Deputy Atty. Gen., for appellee.

DeBRULER, Chief Justice.

This is an appeal from a conviction for armed robbery following a trial by court on an indictment[252 Ind. 496] in Division One of the Criminal Court of Marion County, Indiana.

The crime of robbery is defined by Burns Ind.Stat.Ann. § 10--4101, as follows:

'Whoever takes from the person of another any article of value by violence or by putting in fear, is guilty of robbery, and on conviction shall be imprisoned not less than ten (10) years nor more than twenty-five (25) years * * *.'

Appellant argues three grounds for reversal: (1) There was insufficient evidence to sustain a finding of guilty; (2) The trial court failed to rule on appellant's motion for directed verdict; (3) The prosecutor suppressed evidence favorable to the appellant.

(1) On a challenge to the sufficiency of the evidence this Court does not weigh the evidence but looks to that evidence and the reasonable inferences therefrom most favorable to the State. The conviction will be affirmed if from that viewpoint there is some evidence from which a reasonable trier of fact could infer the appellant was guilty beyond a reasonable doubt. Carter v. State (1968), Ind., 234 N.E.2d 850; Butler v. State (1967), Ind., 229 N.E.2d 471; Tait v. State (1963), 244 Ind. 35, 188 N.E.2d 537. We now examine

Page 746

the facts most favorable to the State in accordance with our duty to review them.

On February 6, 1966, at 10:30 p.m. the appellant, armed with a black pistol and accompanied by another man carrying a sawed-off shotgun, entered a pool room in Indianapolis owned by the witness, Robert Sanders. Neither man was masked. The man with the shotgun stood by the door and announced that it was a holdup while the appellant ordered two men who were sitting in the room to lay down on the floor with their faces down. This they did. The appellant then told Robert Sanders to do likewise and he responded by squatting down behind a counter and showcase. The appellant[252 Ind. 497] held the pistol in Sanders' face and reached over and took a box containing about $447.00 out of the showcase. The two armed men then instructed the three men in the shop to remain on the floor for five minutes as they backed out the door and left. On April 7, 1966, Robert Sanders saw the appellant in the City-County Building in Indianapolis, reported the appellant's presence to the police and identified the appellant to police officer James Dabner who immediately arrested the appellant.

The appellant argues that the evidence identifying him as one of the men who committed the crime is insufficient as a matter of law. The witness, Mr. Sanders, testified as follows:

'Q. Who said get down?

A. This gentleman sitting there.

Q. Okay.

A. He said get down off the stand. They hee-hawed a little bit around, he said get down off the stand, I mean get down. He had a big black pistol in his hand.

Q. The man that said get down, was he the one with the pistol?

A. Yes, sir.

Q. Is that the man sitting right there?

A. That's the gentleman.

Q. Who said that means you too?

A. This gentleman here. * * *.'

The above quotes from the trial record show that the identification of the appellant was definite and supported by sufficient evidence.

[252 Ind. 498] Appellant further asks the Court to invoke the presumption of innocence rule and reverse this case because the evidence presented by the prosecution and the defense is 'equal' in the sense that each side had only one witness to testify to the event that took place. For this Court to accede would be to usurp the functions of the trier of fact. This we cannot do. Manlove v. State (1968), Ind., 232 N.E.2d 874; Anderson v. State (1966), 247 Ind. 552, 217 N.E.2d 840; Fitzgerald v. State (1966), Ind., 219 N.E.2d 603.

(2) Appellant next contends that he has been denied a fair trial by the failure of the trial court to rule upon appellant's motion for discharge at the end of all the evidence. The motion and disputed ruling are as follows:

'At this time, Your Honor, moves that he be discharged. It is his word against the prosecuting witness, Mr. Sanders. Mr. Sanders said that the defendant had a gun and another guy had a shotgun but if there was any other man in there, he is not in the Courtroom. The defendant steadfastly denied to Sargeant Dabner here that he held the man up and said that he had never been in that...

To continue reading

Request your trial
29 practice notes
  • Fleenor v. State, No. 1184
    • United States
    • Indiana Supreme Court of Indiana
    • October 13, 1987
    ...value from which a reasonable trier of fact could infer that appellant was guilty beyond a reasonable doubt. Fair v. State (1969) Ind. , 250 N.E.2d 744." Smith v. State (1970), 254 Ind. 401, 260 N.E.2d Here is the evidence most favorable to the verdict. Within two hours prior to the offense......
  • Richard v. State, No. 277S141
    • United States
    • Indiana Supreme Court of Indiana
    • November 22, 1978
    ...a matter of due process and the right to a fair trial. See also White v. State, (1975) 263 Ind. 302, 330 N.E.2d 84; Fair v. State, (1969) 252 Ind. 494, 250 N.E.2d 744. There are many types of fact situations in which this duty comes into question, however, arising out of differences in pros......
  • State v. Bryant, No. 2--174A14
    • United States
    • December 29, 1975
    ...State (1975), Ind., 330 N.E.2d 84, at 85. Cf: Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; Fair v. State (1969), 252 Ind. 494, 250 N.E.2d It is apparent that the State could not have been harmed by the trial court's discovery order, inasmuch as it was already under ......
  • Dillard v. State, No. 170S6
    • United States
    • October 26, 1971
    ...or bad faith of the prosecution.' 373 U.S. at 87, 83 S.Ct. at 1196. This Court recognized the principle of Brady in Fair v. State (1969), 252 Ind. 494, 250 N.E.2d 744, however, it does not apply unless there is some reason to believe that the prosecution did suppress evidence. Appellant off......
  • Request a trial to view additional results
29 cases
  • Fleenor v. State, No. 1184
    • United States
    • Indiana Supreme Court of Indiana
    • October 13, 1987
    ...value from which a reasonable trier of fact could infer that appellant was guilty beyond a reasonable doubt. Fair v. State (1969) Ind. , 250 N.E.2d 744." Smith v. State (1970), 254 Ind. 401, 260 N.E.2d Here is the evidence most favorable to the verdict. Within two hours prior to the offense......
  • Richard v. State, No. 277S141
    • United States
    • Indiana Supreme Court of Indiana
    • November 22, 1978
    ...a matter of due process and the right to a fair trial. See also White v. State, (1975) 263 Ind. 302, 330 N.E.2d 84; Fair v. State, (1969) 252 Ind. 494, 250 N.E.2d 744. There are many types of fact situations in which this duty comes into question, however, arising out of differences in pros......
  • State v. Bryant, No. 2--174A14
    • United States
    • December 29, 1975
    ...State (1975), Ind., 330 N.E.2d 84, at 85. Cf: Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; Fair v. State (1969), 252 Ind. 494, 250 N.E.2d It is apparent that the State could not have been harmed by the trial court's discovery order, inasmuch as it was already under ......
  • Dillard v. State, No. 170S6
    • United States
    • October 26, 1971
    ...or bad faith of the prosecution.' 373 U.S. at 87, 83 S.Ct. at 1196. This Court recognized the principle of Brady in Fair v. State (1969), 252 Ind. 494, 250 N.E.2d 744, however, it does not apply unless there is some reason to believe that the prosecution did suppress evidence. Appellant off......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT