Gaynor v. State

• Decision Date: 17 June 1966
• Docket Number: No. 30233,30233
• Parties: Joseph GAYNOR, Carmen Apicella and Cass Casmir, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 156

217 N.E.2d 156

247 Ind. 470

Joseph GAYNOR, Carmen Apicella and Cass Casmir, Appellants, v. STATE of Indiana, Appellee.

No. 30233.

Supreme Court of Indiana.

June 17, 1966.

Charles K. Whitted, Bernard M. Tetek, Gary, for appellants.

John J. Dillon, Atty. Gen., Carl E. Van Dorn, Deputy Atty. Gen., for appellee.

MYERS, Judge.

Appellants herein, being Joseph Gaynor, Carmen Capicella and Cass Casmir, were charged by indictment with the crime of conspiracy to commit second-degree burglary in that they did unlawfully, knowingly and feloniously combine, conspire, confederate and agree to and with each other in the felonious intent to burglariously break and enter a business building wherein was located the tavern (hereinafter called State Tavern) of Vasco and Vincent Cataldi to unlawfully take and carry away the personal goods and property of the Cataldis.

Appearing in court by counsel, each of appellants waived trial by jury and entered a plea of not guilty. A change of judge was taken, and the cause was tried to the court before the Hon. Louis C. Holland as Special Judge. Each appellant was found guilty and was sentenced to a term of not less than two nor more than fourteen years in the Indiana State Prison and fined the sum of $25 and costs. Appellant Casmir's sentence was suspended during his good behavior and he was placed on probation. A motion for new trial was filed and overruled. This appeal followed.

The overruling of the motion for new trial is relied upon as the basis for the assignment of errors. Among the specifications of error in the motion are that the finding of the court was not sustained by sufficient evidence and was contrary to law.

Evidence most favorable to appellee reveals that about 3:00 a.m. on the morning of December 30, 1960, a Hammond, Indiana, police officer, Trulan Merritt, was patrolling the area surrounding the State Tavern. He was acquainted by sight with appellant Casmir. At that time, he first saw Casmir in a 1960 model white-over-red Chevrolet with the left-front parking light out, about a half block from the State Tavern. A few minutes later he saw this Chevrolet near the State Tavern, and there were three occupants in the car whom he could not identify. The third time, he saw the same car with three occupants park near the Tavern and leave. The car came back and there was only one person in it who was identified by the officer as Casmir, who left with the lights off. This all happened within a period of minutes. The car turned into the street directly even with the Tavern and stopped. Two men came from the rear of the Tavern and got into the car which drove off. At that time, the officer checked the safe in the Tavern which was located from the front door to the left and was behind the bar inside the front window. It was not visible from the sidewalk, but could be seen from the window in the door to the left. Upon inspection, he could not see the safe--there was only a vacant spot. He went around to the rear of the building where there was some construction work and remodeling wherein there was a hole filled with insulation and air ducts. Upon returning to the front of the building, the same car passed him again going south.

The officer called the police station, and subsequently the owner came to the Tavern. The officer admitted that he saw no one in the Tavern, nor did he see the appellants therein. However, he states that the two men who came out of the rear of the Tavern were approximately six feet tall; one wore a dark coat, fingertip length, and the other appeared to have on a jacket and cap. At the line-up in the police station the next day, appellant Gaynor had on a cap and was wearing a sweater; both were dressed in dark fingertip coats.

Another police officer from Hammond, Edward Herkey, testified that he was acquainted with appellant Casmir and saw him on the morning of December 30, 1960, about 3:45 a.m., in a red-and-white 1960 Chevrolet with two other male adults. The officer was sitting in a gas station, on a street known as Willow Court, while on a walking beat. Casmir's car had come to a halt for a passing train at a crossing. Behind him came a Hammond police car which put a spotlight in the rear window. It was driven by Officer Mamala, who had known appellant Casmir for about twelve years. Casmir got out of his car, went back to Officer Mamala's squad car and exchanged New Year's greetings. During this time, Officer Mamala noticed some one in the front seat of Casmir's car. Then they departed. According to Officer Herkey, Casmir's car went west on Willow Court about one hundred yards, then stopped. A man got out with a cardboard box, which he placed under a truck along the railroad tracks which ran parallel to Willow Court. He was stated to be slender, medium build and height, dressed in a jacket sweater and ski cap. After he placed the box under the truck, he returned to the car, got in and was driven off. Officer Herkey went to see what was in the box. It contained two revolvers, a crowbar, large hammer, a screwdriver, pipe wrench, some chisels and punches. The officer called the station after dumping the contents into another box and taking the original back where he found it. Ten minutes later he saw Casmir crossing the railroad tracks. He was stopped by Officers Mamala and Snyder. There were three of them who were handcuffed, and Officer Herkey identified them as appellants, Casmir, Gaynor and Apicella.

One of the owners of the Tavern, Vasco Cataldi, stated that he had closed the Tavern at five or ten minutes after 1:00 a.m. and left it intact. When he returned at 3:00 a.m. there was a broken door frame, the door between the kitchen and dining-room was broken and pried open and the lock was broken. The safe was inside by the back door in the private dining-room, having been moved at least seventy-five feet. There were tracks on the floor made by wheeling the safe. These were not there when he went home. The door had a mark of some kind of tool that pried the lock off which looked like a screwdriver with a face about three-quarters of an inch wide.

The screwdriver, a section of the doorjamb with tool impressions in the area of the lock or catch, a pair of gloves found in the Chevrolet, some insulation material from an air duct in the Tavern, together with a black jacket, were all sent to the FBI Laboratory in Washington, D.C., for examination. A Special Agent of the FBI testified that the screwdriver had made one of the marks on the doorjamb. It was also determined that the material found on the gloves was similar to the insulating material found in the air duct. No wood fibers could be found on the jacket.

It has been held that a conspiracy does not need to rest solely on words giving rise to an express agreement, but may be inferred from acts and conduct of the persons accused done in pursuance of an apparent crimnal or unlawful purpose in common between them. Smith, Peak v. State (1961), 241 Ind. 311, 170 N.E.2d 794; Steffler v. State (1952), 230 Ind. 557, 104 N.E.2d 729.

There was sufficient evidence presented herein upon which the court could have found appellants guilty as charged, so the finding of the court is not contrary to law. Chappell v. State (1940), 216 Ind. 666, 25 N.E.2d 999.

Appellants claim that there was a variance between the allegations in the indictment and proof of ownership of the Tavern. The indictment alleges joint ownership, while the proof indicates ownership by only one person, Vasco Cataldi. There is no evidence that this variance tended to prejudice the substantial rights of appellants on the merits of this case such as to cause reversible error.

'No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed, nor shall the trial, judgment or other proceeding, be stayed, arrested or in any manner affected for any of the following defects: * * *

'Tenth. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.' Burns' Ind. Stat., § 9--1127 (Tenth), 1956 Replacement; Lucas v. State (1918), 187 Ind. 709, 121 N.E. 274.

This variance does not constitute reversible error.

Appellants argue the rule that merely being present in the vicinity or being present when a crime is committed is not enough to make a person guilty of a conspiracy to commit a crime, citing Carey v. State (1924), 194 Ind. 626, 144 N.E. 22. While this is the general rule, the facts set forth previously in this opinion are sufficient to overcome the presumption of innocence, so that the rule is not applicable.

Next, it is urged that the court committed error in admitting certain State's Exhibits without formal offer on the part of the State or giving the defendants a chance to state objections and be heard thereon; that the court summarily admitted them on is own motion. Those exhibits were such as the doorjamb, the screwdriver, the pair of gloves, the insulating material, pieces of sheet metal, the cardboard box, the tools and others. In each case, appellants' counsel made general objections to the introduction of these exhibits, but was interrupted by the Judge, who several times stated that he would receive them in evidence pending a ruling on the objection.

As to State's Exhibit 22, the following colloquy took place:

'THE COURT:

'Q Are you going to offer State's Exhibit No. 22 separately?

'A I would like to.

'THE COURT:

'All right.

'MR. TETEK:

'The Defendants object to the introduction of said exhibits and reserve the right to be heard on the objection.

'THE COURT:

'All right, I will reserve my ruling.

'* * *

'THE COURT INTERRUPTING:

'So there will be no misunderstanding every exhibit the State has marked and tendered has been introduced and made a part of the record, so there is no mistake, all are in the record, so the chain is properly connected, I feel they should be in now.'

This was the tenor of the court's...