Gann v. State, 1269S293

Decision Date17 May 1971
Docket NumberNo. 1269S293,1269S293
Citation256 Ind. 429,269 N.E.2d 381
PartiesBilly Ray GANN, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

J. Lee McNeely, Pell & Matchett, Shelbyville, for appellant; Robert Adams, Adams & Cramer, Shelbyville, of counsel.

Theodore Sendak, Atty. Gen., David S. Wedding, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

The appellant was charged by affidavit with the crime of second degree burglary. A trial by jury in the Shelby Superior Court resulted in a verdict of guilty as charged. On May 9, 1969, judgment was rendered upon the verdict and the appellant was sentenced to the Indiana State Reformatory for a term of not less than two (2) nor more than five (5) years.

Appellant contends that the decision is contrary to law because of a lack of evidence and that the court erred in overruling the defendant's motion at the close of all the evidence to direct a verdict of acquittal. When the sufficiency of the evidence is raised on appeal, it is well settled that this Court considers only that evidence most favorable to the State, together with all the reasonable and logical inferences that may be drawn therefrom. Johnson v. State (1968), 251 Ind. 17, 238 N.E.2d 651; Capps v. State (1967), 248 Ind. 472, 229 N.E.2d 794.

Early in the morning of July 11, 1968, Harold Myer, owner of the O.K. Tire Company in Morristown, Indiana, went to his place of business and noticed upon arrival that approximately sixty-four (64) tires that he had inside his building were missing. Myer also noticed that the large door in the rear of the building had one of its plywood window frames knocked out and that the molding and framework were lying on the floor. He telephoned the Shelby County Sheriff's Office at approximately 7:00 a.m. to apprise them of the situation. That same morning, at about the same time, Haskell Myers was driving to his brother's residence on Morristown Road and when approximately a quarter of a mile from his destination, he saw two men loading tires from a cornfield into a panel truck. His brother, Kenneth Myers, stated that he saw three men loading the truck. The Shelby County Sheriff's Office was called by Kenneth Myers after Haskell Myers arrived. The Sheriff's Office was given a description of the truck and the license number. The appellant was apprehended shortly thereafter when the police stopped the truck that had been loaded with the tires.

This Court recently stated in Lawrence v. State (1963), 244 Ind. 305, 312, 192 N.E.2d 629, 632:

'The state relies entirely upon the proposition that the possession of recently stolen property by appellants raised a presumption that the appellants stole it. The rule is that unexplained exclusive possession of recently stolen property constitutes a circumstance from which a court or jury may draw an inference of guilt. McAdams v. State (1948), 226 Ind. 403, 411, 81 N.E.2d 671.'

Similar language was used by this Court in Bradley v. State (1964) 244 Ind. 630, 195 N.E.2d 347. The appellant's explanation for his possession of the tires was that he had met some men at a White Castle drive-in restaurant in Indianapolis, Indiana, who asked him if he wanted to buy any tires. Having replied that he was interested, he went to the home of his brother for the purpose of securing use of a truck. The appellant's brother was able to obtain the use of a truck and the appellant and his two brothers allegedly followed the men who were selling the tires to the cornfield, at which time the men selling the tires drove away. Payment for the tires was apparently to be made when the appellant got the tires back to Indianapolis, Indiana. Clearly, the jury did not believe this explanation.

We further point out inconsistent and suspicious circumstances, in that part of the tires were left in the cornfield. A cornfield is not the place where a person normally buys tires. When Haskell Myers drove by early in the morning and saw tires being loaded in the truck, two men attempted to hide or conceal themselves behind the truck so as not to be observed. The corpus delicti, a break in of a tire store, was proved. The stolen tires were positively identified as coming from the building broken into. They were the same tires found in the truck in which the appellant was fleeing from pursuers. This was in the morning shortly after the burglary. In our opinion these facts ought to lead to the conclusion that the appellant was guilty of the burglary as charged, from the circumstantial evidence following these activities. Schweigel v. State (1964), 245 Ind. 6, 195 N.E.2d 848; Stallings v. State (1967), 249 Ind. 110, 231 N.E.2d 29.

The appellant next contends that the court erred in giving Instruction Number 22, which reads as follows:

INSTRUCTION NO. 22

'The unexplained, exclusive possession of a defendant of recently stolen property is a circumstance which may be considered, along with the other facts and circumstances of the case, in determining the guilt or innocence of the accused. However, the mere possession of stolen goods, standing alone, is insufficient to support a conviction, and the defendant cannot be convicted on the basis of evidence of mere possession of stolen goods alone.

'If you should find from the evidence, beyond a reasonable doubt, that a burglary was in fact committed on the premises involved in the case, and that within a short period of time thereafter the defendant himself or with others was found in the unexplained, exclusive possession of property identified by the evidence as that stolen from the burglarized premises, you may consider such circumstance in arriving at your verdict in this case. However, no presumption of guilt of burglary is made or arises against a defendant merely by reason of his exclusive possession of goods which have been unlawfully and burglariously taken within a short period of time beforehand, if such be the case. Proof of the commission of the offense must be made beyond a reasonable doubt by the State, and the defendant has no burden to account for or explain for his possession of the goods, but the burden of proving his guilt beyond a reasonable doubt rests entirely upon the State, and you would not be warranted in finding the defendant guilty unless all of the elements of the offense charged have been proved by the evidence, of whatever class it may be, beyond a reasonable doubt.'

We find that the instruction correctly states the law as it exists in this State. Lawrence v. State, supra; Bradley v. State, supra. Furthermore, the instruction explains to the jurors that they cannot find the defendant guilty solely on the basis of his possession of stolen goods and that the burden of proving his guilt beyond a reasonable doubt always rests upon the State.

The appellant cites Dedrick v. State, infra, in support of his position. However, we stated in Dedrick v. State (1936), 210 Ind. 259, 278, 2 N.E.2d 409, 418:

'Exclusive possession by the defendant of recently stolen goods is a circumstance to be considered by the jury, and, if the state proves that the goods in question have been recently stolen, and soon thereafter were found in the possession of defendant, and there is no evidence in the record explaining the possession of the defendant, and if the jury under proper instruction concludes that the defendant was guilty, such evidence would be sufficient to sustain the verdict of the jury upon appeal. We do not think that a court has any right or any power to instruct the jury that the proof of certain facts raises a presumption against the defendant in a criminal case, but the court should more properly instruct the jury that all facts and circumstances as shown by the evidence shoudl be considered by them in determining the guilt or innocence of the defendant.'

The trial court in the case before us instructed the jury properly as to the law concerning this issue and we thus find no error on this point.

Appellant also contends the trial court erred in permitting law enforcement officers to answer questions put to them as witnesses by the prosecuting attorney concerning the search of the truck in which the appellant was riding. Specifically, the appellant contends that his arrest was not based upon probable cause and that therefore any evidence or testimony adduced from the search incidental to the alleged invalid arrest was inadmissible at his trial.

The record, however, indicates that Shelby County Deputy Sheriff Richard Allender received a phone call from Harold Myer at 7:00 a.m. on July 11, 1968, concerning the breaking and entering of Mr. Myer's business, O. K. Tire Company. Deputy Allender further testified that he received a phone call from Kenneth Myers at 7:25 a.m. on the same date advising him that three men were loading tires from a cornfield into a panel truck, furnishing him with the license number. Deputy Allender then phoned the Shelbyville City police in an attempt to have them intercept the panel truck along the Morristown Road.

Shelbyville City Policeman Mark Sullivan testified that he received a call over his radio alerting him to the burglary at the O. K. Tire Company and informing him of the description and license number of the panel truck seen in the cornfield being loaded with tires. Heading towards the vicinity where the panel truck had last been seen, the officer was waived down by Kenneth Myers who informed the officer that he and his brother had just lost sight of the truck. Officer Sullivan soon caught up with the truck, observed the license number, and saw that the truck was loaded with tires, before making the arrest.

We find the above information sufficient to establish probable cause to arrest the appellant. The appellant states in his reply brief:

'The law enforcement authorities could have followed the defendant and radioed ahead for assistance in trailing the defendant to see what course the defendant and his...

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