Green v. State, 29801

Citation168 N.E.2d 345,241 Ind. 96
Decision Date30 June 1960
Docket NumberNo. 29801,29801
PartiesWilliam GREEN, Appellate, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Saul I. Ruman, Sachs, Ruman & Tanasijevich, Saul A. Sachs, Hammond, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Asst. Atty. Gen., for appellee.

LANDIS, Judge.

This is an appeal from appellant's judgment of conviction for grand larceny.

The record reveals that appellant and one Shoup, who were police officers of the City of Hammond, Indiana, were jointly charged in a single affidavit with grand larceny. On their trial before the court the defendant Shoup was called as a witness for the prosecution as a part of the State's case, and at the conclusion of his testimony and before the commencement of the defense, the State dismissed as to the codefendant Shoup. At the conclusion of the trial the court found appellant to be guilty and sentenced him for a period of one to ten years. The error assigned is the overruling of appellant's motion for new trial.

Appellant contends among other things that the court's finding of guilty is contrary to law and is not sustained by sufficient evidence in that there is not sufficient proof to sustain a larceny conviction against appellant.

The evidence favorable to appellee is to the effect that appellant and codefendant Shoup were fellow police officers of the City of Hammond, Indiana, and that appellant told codefendant Shoup in 1957 appellant could get a refrigerator, washer and dryer for Shoup from a friend. Appellant said he could get the appliances cheap. In the latter part of February, 1957, Shoup received a radio message while on duty to meet a complainant at 156th Street and Kennedy, and when he arrived there met the complainant, who was Officer Green, the appellant, in civilian clothes. It was about 1:00 or 2:00 o'clock in the morning, and appellant asked Shoup if he was still interested in obtaining the Frigidaire refrigerator, washer and dryer, and Shoup said yes. Appellant got into the squad car and after it was driven into a residential district along 165th Street, he asked to be let out and told Shoup to be back in half an hour. When Shoup returned appellant was there with a truck and another man named Joe. Appellant told Shoup to drive to Shoup's house and appellant and Joe followed in the truck carrying the refrigerator, washer and dryer. Appellant and Joe took the appliances off the truck and put them in Shoup's garage. Shoup paid appellant $50 for the appliances and appellant gave the money to Joe and appellant and Joe left in the truck. Two days later Shoup gave appellant $200 more for the appliances. A building contractor testified the appliances were taken from his model home on 165th Street in Hammond, Indiana, on February 19th or 20th, between 6:00 p. m. and 8:00 a.m., and that he made out a report of seconddegree burglary and the taking of the Frigidaire refrigerator, washer and dryer to the police at 8:25 a. m. on February 20th. He testified the appliances were new when taken and were of the value of $616. 37. The police officers picked up the appliances from Shoup's premises after identifying them as the same machines taken from the model home. No evidence was offered by the defense to explain the possession of the missing articles in the truck or subsequently on the Shoup premises.

We believe this evidence was sufficient to support appellant's conviction upon the basis of the rule enunciated in the case of Mims et al. v. State, 1957, 236 Ind. 439, 444, 140 N.E.2d 878, 880, viz.:

'Exclusive possession of property shown to have been stolen, shortly after the larceny, unquestionably is a circumstance to be considered by the jury, and if proof is made that such larceny was recently committed and there is no evidence to explain the possession of the defendants, a larceny conviction based upon such evidence will be sustained on appeal.' See also: Gilley et al. v. State, 1949, 227 Ind. 701, 88 N.E.2d 759; McAdams v. State, 1948, 226 Ind. 403, 81 N.E.2d 671, and cases cited.

The constitutional questions sought to be raised by appellant are waived by reason of his failure to present them in his motion for new trial, the overruling of which is the only error here assigned on appeal.

Appellant argues generally that the court erred in overruling his motion for new trial on account of accident and surprise and newly discovered evidence without citing any authority. He has not made any showing of reversible error and his contention must fail.

Appellant also contends the court erred in refusing to consider that an alleged secret agreement had been entered into between the State and codefendant Shoup to the effect that the State would dismiss as to Shoup if he testified for the prosecution.

The statute providing the court may discharge a defendant in order that he may be a witness for the state is as follows:

'When two or more persons are included in one prosecution, the court may, at any time before a defendant has gone into his defense, direct him to be discharged, that he may be a witness for the state. A defendant may also, when there is not sufficient evidence to put him on his defense, at any time before the evidence is closed, be discharged by the court for the purpose of giving testimony for a codefendant. The order of discharge shall be a bar to another prosecution for the same offense.' Burns' § 9-1609 (1956 Replacement), being Acts 1905, ch. 169, § 241, p. 584. (Emphasis added.)

Appellant has conceded that he was told by the codefendant's attorney (Cohan) immediately prior to the commencement of the trial that the codefendant (Shoup) would testify for the State, but appellant states he first learned during the second day of trial of the alleged secret agreement that the State would dismiss as to Shoup if he testified for the prosecution. The record however fails to disclose any such question was presented by appellant to the trial court until 27 days after his trial and conviction when he filed his motion for new trial.

It is true appellant has attached to his motion for new trial as an exhibit an unverified, undated motion by his attorney to find for the defendant. It does not appear that this motion, which appellant places reliance upon, was ever filed in the cause nor is there any showing by affidavit or otherwise that this specific motion was offered or tendered for filing. In any event it does not set forth allegations which could form the proper basis of a motion for a directed finding for the defendant, and it therefore presents no question.

To preserve questions as to error allegedly occurring during the trial of a cause, a party or his attorney must be diligent to raise such questions seasonably during the trial so as to give the trial court an opportunity to rule thereon and if possible to...

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16 cases
  • Turner v. State
    • United States
    • Indiana Supreme Court
    • April 4, 1972
    ...35--1--31--3. This Court has stated that a conviction may be based upon the uncorroborated testimony of an accomplice. Green v. State (1960), 241 Ind. 96, 168 N.E.2d 345. From time to time this Court has made statements to the effect that the testimony of an accomplice must be closely scrut......
  • Weekley v. State
    • United States
    • Indiana Appellate Court
    • January 29, 1981
    ...This instruction appears to be taken from language employed in Newman v. State, (1975) 263 Ind. 569, 334 N.E.2d 684; Green v. State, (1960) 241 Ind. 96, 168 N.E.2d 345; and Kleihege v. State, (1934) 206 Ind. 206, 188 N.E. 786. However, the fact that certain language appears in an opinion do......
  • People v. Love
    • United States
    • Court of Appeal of Michigan — District of US
    • November 27, 1972
    ...F.2d 1105 (C.A. 9, 1971); Padgett v. State, 53 So.2d 106 (Fla.1951); State v. Chang, 46 Hawaii 22, 374 P.2d 5 (1962); Green v.State, 241 Ind. 96, 168 N.E.2d 345 (1960); People v. Gore, 64 Ill.app.2d 309, 211 N.E.2d 757 (1965); Rue v. Commonwealth, 347 S.W.2d 74 (Ky.1961); Cole v. State, 289......
  • McMinoway v. State
    • United States
    • Indiana Appellate Court
    • June 6, 1972
    ...on them. Unexplained exclusive possession of recently stolen property is evidence of guilt. Bradley v. State, supra; Green v. State (1960), 241 Ind. 96, 168 N.E.2d 345, and authorities cited The third issue involves a failure of the judge to enter judgment upon receipt of the jury's verdict......
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