Gilley v. State
| Decision Date | 28 November 1949 |
| Docket Number | 28526. |
| Citation | 88 N.E.2d 759,227 Ind. 701 |
| Parties | GILLEY et al. v. STATE. |
| Court | Indiana Supreme Court |
Thurl C. Rhodes, Indianapolis, for William Gilley.
William C Erbecker, Indianapolis, for Elmer Perdue.
J. Emmett McManamon, Atty. Gen., Charles O'Connor, Deputy Atty Gen., Merl M. Wall, Deputy Atty. Gen., for appellee.
The appellants in this case were charged by affidavit in two counts, with burglary in the second degree and grand larceny. The case was tried by the court without a jury. The court found for the appellants upon the burglary charge, but found them guilty of petit larceny and sentenced them to terms of from one to five years in the Indiana State Prison.
The only questions before us are whether or not the evidence sustained the finding and judgment from which this appeal has been taken, and whether the affidavit upon which appellants were prosecuted was sufficient to give the court jurisdiction.
There is no substantial conflict in the evidence. Police officers were called to 1222 Oliver Avenue, Indianapolis, which was an ice cream parlor, also selling cigarettes, pipes, razor blades and other small miscellaneous merchandise. They found the front door broken open. After searching the place and finding no one they observed an automobile immediately across the street, in which the appellants were sitting. The police officer testified both appellants appeared to be asleep. Gilley was the owner of the car and was in the front seat behind the wheel. Perdue was in the rear seat, where the plunder was found. Both had been drinking and there was evidence that earlier in the evening they were seen in a tavern intoxicated. They found 29 packages of cigarettes, 60¢ in currency, a brown leather money pouch, nine new pipes, a cigarette holder and 46 packages of razor blades on the floor of the car in front of the rear seat. There were about a half dozen packages of cigarettes in the pockets of each of the appellants. The proprietor of the ice cream parlor which had been burglarized testified that pipes, razor blades cigarettes, money pouch and $32 in odd change had been stolen from his place of business.
The owner of the ice cream parlor identified the merchandise in the back of the car as having been in his store and belonging to him. The appellants claimed to have been asleep and to the police denied all knowledge of the burglary and claimed not to know how the merchandise came to be in their car. A woman living within about 30 feet of where the car was parked across the street from the burglarized store testified that she saw two men run away from the store and across the street to the car and throw something into the back seat of the car. She said that at the time this was done three men were waiting in the car and that the two men who threw the merchandise in the car ran away and that the men in the car were not the ones she had seen put the merchandise in the car. She said the men in the car were the appellants and a man named Denison. Shortly thereafter the police arrived and when they arrived there were only two men in the car. There was no evidence that any money, other than 60¢ was found in the car or upon the appellants at the time they were arrested.
By a motion for discharge, at the conclusion of all the evidence and by a motion for a new trial, appellants contended that the evidence was not sufficient to sustain a conviction. 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, Ind., 81 N.E.2d 671, 674, 675 and cases cited.
The owner of the property here involved positively identified it as having been taken from his store, and it was found in the automobile occupied by the two appellants only a few minutes after it was stolen. The circumstance was sufficient to permit the trial court to draw an inference of guilt and convict the appellants. There were other circumstances which might lead to a different conclusion, such as the fact that the appellants did not flee and seemed to be asleep in their car when the officers arrived, and such as the fact that all the money alleged to have been stolen was not found in the possession of the appellants. There was also the testimony of the witness that she saw others place the stolen merchandise in appellants' car. It was for the court to weigh these other circumstances and this evidence. The court saw the witness and could have disbelieved her, even though her evidence was not contradicted by any other witness. Neuwelt v. Roush, 1949, Ind.App., 85 N.E.2d 506, 514; McKee v. Mutual Life Ins. Co. of New York, 1943, 222 Ind. 10, 15, 51 N.E.2d 474. It was for the court to determine her credibility, in the light of all the other circumstances, not for us, and it was for the court to weigh her evidence and the other circumstances against the possession of the property and reach a conclusion. We will not consider the weight of these other circumstances or the weight of the other evidence, which would be necessary if we were to reverse the case upon this...
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Fortson v. State
...of recently stolen property constitutes a circumstance from which a court or jury may draw an inference of guilt"); Gilley v. State, 227 Ind. 701, 88 N.E.2d 759, 761 (1949); McAdams v. State, 226 Ind. 403, 81 N.E.2d 671, 674-75 (1948) (in a second degree burglary case, the Court noted that ......
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Stallings v. State
...facts, this Court held that there was sufficient evidence to support a conviction for Shoplifting. See also, Gilley et al. v. State (1949), 227 Ind. 701, 88 N.E.2d 759. Judgment HUNTER, C.J., and ARTERBURN and MOTE, JJ., concur. JACKSON, J., dissents with opinion. JACKSON, Judge (dissenting......
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Durrett v. State
...on such evidence will be sustained on appeal.' Mims et al. v. State (1957), 236 Ind. 439, 444, 140 N.E.2d 878, 880; Gilley et al. v. State (1949), 227 Ind. 701, 88 N.E.2d 759. Some argument is made in the brief that the defendant has no burden of proof in a criminal case. We have here no su......
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Bolton v. State
...of November, 1966. In the case at bar, therefore, possession was not 'recent' in the same sense that it was in Gilley v. State (1949), 227 Ind. 701, 88 N.E.2d 759, where the appellants were apprehended with the stolen property within a few minutes after it was Moreover, there is no evidence......