Gerber v. State
| Decision Date | 10 March 1972 |
| Docket Number | No. 370S59,370S59 |
| Citation | 29 Ind.Dec. 572,258 Ind. 171,279 N.E.2d 542 |
| Parties | Jack Lee GERBER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Russell S. Armstrong, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., J. Frank Hanley, Deputy Atty. Gen., for appellee.
The appellant was convicted of conspiracy to commit a felony by a jury in the Dubois Circuit Court, the Honorable Howard A. King, presiding, and was sentenced to not less than two nor more than fourteen years. The case against the appellant was built primarily on the testimony of an accomplice who testified in detail concerning the events surrounding the attempt to break into a retail store. The appellant does not contest the fact that the accomplice's testimony, if believed, was sufficient to sustain the verdict. However, he does complain of two trial court errors which in his view deprived him of a fair trial. We find no merit in the claim that the trial court erred in this case and thus affirm the conviction.
Briefly, the accomplice testified that he, the appellant, and one other person, met at his house in the Town of Bloomfield at about 3:00 p.m. on December 18, 1968. They decided 'that we were going out that night, drink a little bit, have a little fun, and going to rob someplace.' At about 5:30 p.m. they went to the Town of Loogootee and drank some more. The witness testified that they discussed breaking into the Home Outfitters Store in Loogootee and that he personally checked it out, but that they decided against it. Later that evening they went to Jasper, Indiana, and attempted to break into a store in that town.
On cross examination, the accomplice testified that he and the same two companions had burglarized another store in November of 1968. He testified that they had stolen several chain saws and sold some of them to a 'fence' in Indianapolis, which he named, and several others to a named 'fence' in Harrodsburg, Indiana.
The appellant urges that it was error for the trial court to allow the testimony of the discussion concerning the proposed burglary in Loogootee, Indiana, over his objection. However, the record indicates that the appellant was present during this discussion, and it is settled law that such evidence is admissible as tending to show the guilty intent and motive of the appellant. As this Court stated in Eacock v. State (1907), 169 Ind. 488, 82 N.E. 1039:
169 Ind. at 491, 82 N.E. at 1042.
The admissibility of such evidence is an exception of the general rule, Thomas v. State (1885), 103 Ind. 419, 2 N.E. 808, and must be narrowly drawn. In this case, where the conversation concerning the burglarizing of the store...
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