Finch v. State, No. 30571

Docket NºNo. 30571
Citation249 Ind. 122, 12 Ind.Dec. 22, 231 N.E.2d 45
Case DateNovember 16, 1967
CourtSupreme Court of Indiana

Page 45

231 N.E.2d 45
249 Ind. 122
Eugean FINCH, Appellant,
v.
The STATE of Indiana, Appellee.
No. 30571.
Supreme Court of Indiana.
Nov. 16, 1967.

[249 Ind. 123]

Page 46

Jack R. Wood, Shelbyville, for appellant.

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

LEWIS, Judge.

This is an appeal from a conviction of second degree burglary from the Superior Court of Shelby County. The appellant was charged by affidavit, which, omitting the formal parts, reads as follows:

'* * * That on or about the 5th day of November A.D., 1963, at the County of Shelby, in the State of Indiana:

EUGEAN FINCH did then and there unlawfully, feloniously and burglariously break and enter into the building and structure of Elmer W. Thomas and Flora D. Thomas, husband and wife, occupied by Elmer W. Thomas, d/b/a Elmer W. Thomas Superette, then and there situate at 4 Vine Street, City of Shelbyville, County of Shelby, State of Indiana, which said building and structure was not a place of human habitation with the intent to commit a felony therein, towit: unlawfully and feloniously to take, steal and carry away the goods chattels and personal property of the said Elmer W. Thomas, d/b/a Elmer W. Thomas Superette, * * *.'

The case was tried by jury, and on conviction the appellant cites as error the overruling of a motion for new trial, and relies upon the error that the verdict of the jury is not sustained by sufficient evidence.

The pertinent evidence is substantially as follows: About 7:30 a.m., on November 6, 1963, the Sheriff of Shelby County was summoned by an unidentified caller who informed the Sheriff that there was a man in a side ditch on Road 44 outside of Shelbyville. The Sheriff arrived at the scene and found appellant in a dirty and disheveled condition. Appellant possessed a sack of meat and several packages of cigarettes. The Sheriff took appellant in custody and returned with him to Shelbyville. On the way to Shelbyville the Sheriff learned by his car radio that a meat market had been burglarized[249 Ind. 124] the night before, and several sirloin steaks were missing. The meat and cigarettes, which had been in the possession of the appellant met the general description of those goods that had been taken from the meat market, but were never positively identified specifically as those taken from the meat market.

The appellant had been found by the Sheriff approximately one and one-half miles away from the meat market, and he was found some nine and one-half hours after the time of the burglary. When asked for an explanation of the meat and cigarettes in his possession, the appellant gave different and conflicting stories.

The only other evidence of any possible probative value introduced by the State was from testimony that 'something that looked like plaster' was combed from appellant's hair. The store had been entered by means of opening a second-story window and breaking through a plaster ceiling. Appellant offered testimony that on the day of the burglary he had been engaged in removing a plaster ceiling from a residence.

This, then, is the totality of the evidence against the appellant. Assuming that the goods found with him were the actual goods stolen, the unexplained possession of the stolen goods is sufficient to sustain a conviction for larceny. Gilley et al. v. State (1949), 227 Ind. 701, 88 N.E.2d 759. However, this man was convicted of burglary.

Page 47

We now consider whether or not there is evidence in the record to prove the elements of burglary, to wit:

'* * * unlawful, feloniously and burglariously break and enter * * *'.

In doing this, a consideration of whether or not the appellant having in his possession stolen goods while one and one-half miles from the scene of the burglary and nine and one-half hours after the alleged burglary, together with some plaster-like substance in his hair, is adequate to sustain a conviction for breaking and entering.

[249 Ind. 125] A conviction for burglary was affirmed by this Court on circumstantial evidence alone in Bradley v. State (1964), 244 Ind. 630, 195 N.E.2d 347. Bradley was apprehended with the stolen goods in his possession almost immediately after the crime was committed. In addition to the short time element, Bradley was standing immediately across the street from the burglary when he was apprehended. This Court reversed a conviction for burglary in a case where the defendant had exclusive unexplained possession of the stolen goods. McAdams v. State (1948), 226 Ind. 403, 81 N.E.2d 671. In the McAdams case, however, the possession was not discovered until some three and one-half months after the alleged burglary. Bradley v. State, supra, and McAdams v. State, supra, both concur in the doctrine that possession of stolen goods is an evidentiary fact to be weighed by the jury, but is merely one circumstance to be considered with other circumstances. In reversing the McAdams case, this Court quoted an accepted doctrine as follows:

'* * * When evidence before the jury is entirely circumstantial, certain rules have been established for the jury's guidance, and it is not enough that the circumstances be consistent with the hypothesis of guilt, it must be of so conclusive a character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable hypothesis of his innocence, and must be such that the trier of the facts may reasonably and naturally infer to a moral certainty the existence of the fact sought to be proved.'

From these cases, where the stolen goods were positively identified, mere possession was not enough. It had to be coupled with other evidence showing breaking and entering. In the instant case, the evidence is not conclusive that the goods are those actually stolen. In considering the sufficiency of circumstantial evidence, we must constantly have in mind the doctrine of reasonable doubt. This Court said in Baker v. State, (1956), 236 Ind. 55, 138 N.E.2d 641, as follows:

[249 Ind. 126] '* * * The rule of law defining proof beyond a reasonable doubt has been well settled for many years and requires each juror to be so convinced by the evidence that as a prudent man he would feel safe to act upon such conviction in matters of the highest concern and importance to his own dearest and most important interests, under circumstances where there was no compulsion or coercion upon him to act at all. Chambers v. State, 1953, 232 Ind. 349, 356, 111 N.E.2d 816; Morgan v. State, 1921, 190 Ind. 411, 130 N.E. 528; Bradley v. State, 1870, 31 Ind. 492. * * *.'

While this Court will not weigh the evidence, it must be determined if there was substantial evidence. Substantial evidence means more than 'seeming or imaginary'. A verdict upon which reasonable men might differ will not be set aside. However, if no reasonable man could find that the evidence...

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18 practice notes
  • State v. Atwood, No. 685
    • United States
    • New Mexico Court of Appeals of New Mexico
    • December 3, 1971
    ...considering the sufficiency of circumstantial evidence, we must constantly bear in mind the doctrine of reasonable doubt. Finch v. State, 249 Ind. 122, 231 N.E.2d 45 (1967). It is also our duty to scrutinize circumstantial evidence more critically in a criminal case than in a civil case. St......
  • Williams v. State, No. 1-880A220
    • United States
    • Indiana Court of Appeals of Indiana
    • January 27, 1981
    ...the justifiable inference of Williams's guilt. While substantial evidence means more than "seemingly or imaginary," Finch v. State, (1967) 249 Ind. 122, 231 N.E.2d 45, a decision upon which reasonable men might Page 121 differ will not be set aside. McAfee v. State, (1973) 259 Ind. 687, 291......
  • Shultz v. State, No. 3--527A7
    • United States
    • Indiana Court of Appeals of Indiana
    • January 29, 1973
    ...probative value or by reasonable inferences therefrom. Harris v. State (1967), 249 Ind. 681, 231 N.E.2d 800, 802; Finch v. State (1967), 249 Ind. 122, 231 N.E.2d 45, 47.') We have examined the entire record as to each element of the crime of assault and battery with the intent to gratify se......
  • Gann v. State, No. 1269S293
    • United States
    • Indiana Supreme Court of Indiana
    • May 17, 1971
    ...evidence which would in anyway place the appellant at the scene of the crime. My attention is drawn to the case of Finch v. State (1967), 249 Ind. 122, 231 N.E.2d 45. In that case a meat market had been burglarized by means of entering into a second story window and breaking through a plast......
  • Request a trial to view additional results
18 cases
  • State v. Atwood, No. 685
    • United States
    • New Mexico Court of Appeals of New Mexico
    • December 3, 1971
    ...considering the sufficiency of circumstantial evidence, we must constantly bear in mind the doctrine of reasonable doubt. Finch v. State, 249 Ind. 122, 231 N.E.2d 45 (1967). It is also our duty to scrutinize circumstantial evidence more critically in a criminal case than in a civil case. St......
  • Williams v. State, No. 1-880A220
    • United States
    • Indiana Court of Appeals of Indiana
    • January 27, 1981
    ...the justifiable inference of Williams's guilt. While substantial evidence means more than "seemingly or imaginary," Finch v. State, (1967) 249 Ind. 122, 231 N.E.2d 45, a decision upon which reasonable men might Page 121 differ will not be set aside. McAfee v. State, (1973) 259 Ind. 687, 291......
  • Shultz v. State, No. 3--527A7
    • United States
    • Indiana Court of Appeals of Indiana
    • January 29, 1973
    ...probative value or by reasonable inferences therefrom. Harris v. State (1967), 249 Ind. 681, 231 N.E.2d 800, 802; Finch v. State (1967), 249 Ind. 122, 231 N.E.2d 45, 47.') We have examined the entire record as to each element of the crime of assault and battery with the intent to gratify se......
  • Gann v. State, No. 1269S293
    • United States
    • Indiana Supreme Court of Indiana
    • May 17, 1971
    ...evidence which would in anyway place the appellant at the scene of the crime. My attention is drawn to the case of Finch v. State (1967), 249 Ind. 122, 231 N.E.2d 45. In that case a meat market had been burglarized by means of entering into a second story window and breaking through a plast......
  • Request a trial to view additional results

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