Greenwalt v. State, 30261

• Decision Date: 26 July 1965
• Docket Number: No. 30261,30261
• Parties: Richard V. GREENWALT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 254

209 N.E.2d 254

246 Ind. 608

Richard V. GREENWALT, Appellant, v. STATE of Indiana, Appellee.

No. 30261.

Supreme Court of Indiana.

July 26, 1965.

Thomas A. Hoadley, Henley & Dixon, Bloomington, for appellant.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Frederick J. Graf, Deputy Attys. Gen., for appellee.

MYERS, Judge.

Appellant was charged by affidavit with the crime of robbery with a deadly weapon. He was tried by a jury, was found guilty, and was sentenced to be imprisoned from ten to twenty-five years, pursuant to the provisions of Sec. 10-4709, Burns' Ind.Stat., 1956 Replacement.

The only error that appellant has assigned as grounds for reversal is the overruling of his motion for new trial. The Argument section of appellant's brief is divided into seven propositions, alphabetically lettered 'A' to 'G,' which are asserted as grounds for granting appellant a new trial.

The first of these propositions states that the jury's verdict is not sustained by sufficient evidence and that the verdict is contrary to law. In determining if this is so, we consider only that evidence which is most favorable to the State, together with all reasonable and logical inferences that may be drawn therefrom. Music v. State (1959), 240 Ind. 54, 161 N.E.2d 615.

The evidence most favorable to the State is as follows: On October 14, 1960, Russell Jennings, owner and operator of Jennings Filling Station and General Store on Road 1, east of Hamilton, Indiana, saw two men on motorcycles stop at the end of the driveway in front of his store. The cyclists were in their twenties, one riding a red motorcycle with white saddlebags while the other was on a dark motorcycle with black saddlebags. This occurred at about 8:00 o'clock in the evening. Jennings' son-in-law, Jack Richardson, was present in the store also and he, too, noticed the cyclists, who remained sitting for a while and then drove away. At approximately 8:50 p. m., after Richardson had left to pick up his wife, two men entered the store. They were wearing, what Jennings described as, 'darky masks' or Halloween masks with ladies' stockings pulled over them. When one of the men pulled a gun on him and demanded his money, Jennings became frightened, and he was ordered to go to the back of the store and lie down. The gun used was a twenty-two caliber one, with a fiveinch barrel, white hand-grips and an overall length of eleven inches. At precisely 8:59 p. m., the two intruders left by the side door. Although Jennings did not see the money being taken out of the cash register, when he checked it after the robbery he found that about $136 had been taken. Of the $136 taken, $24 was in change, among which was a roll of quarters amounting to $10. Also, as the men were leaving, Jennings saw one of them carrying a cigar box which had contained some of the money and which was later found in a cornfield nearby.

On the night of the robbery, Kathryn Fee was working as a clerk in the Mixing Bowl Drug Store in Hamilton, Indiana, located about two miles from the Jennings Store. That evening she saw appellant on two occasions, once at 7:45 p. m. and again at 8:15 p. m. The first time, appellant asked Mrs. Fee for a full mask made of rubber. Thinking that she did not have any, she directed appellant and a male companion of his to the Booth General Store, which is one store away from the Drug Store. Appellant and his companion went to the Booth Store and he purchased from Mrs. Booth a rubber colored-man's mask. At 8:15 p. m., appellant was back at the Drug Store, and this time he purchased a man's mask with big lips. Then appellant returned to the Booth Store where he asked for and got a pair of ladies' stockings, the largest, the heaviest, and the darkest, size 10 1/2, with the trade name of 'Cannon.'

Shortly after 11:00 p. m. on the night of the robbery, appellant and one Christian V. Schneider entered the Smith Tavern in Corunna, Indiana, where appellant purchased two six-packs of beer for which he paid in quarters. As the two were about to leave the Tavern, they stopped and asked Garland Treesh, a neighbor of Schneider's, if he cared to join them for a game of cards at the Schneider home, located in Corunna, Indiana. Treesh agreed, and, after asking another man, E. Leins, to join them, the men left. While playing cards Treesh noticed that both appellant and Christian Schneider had a great deal of change. Appellant had around $10 worth of quarters.

The next day, October 15, 1960, about 8:00 a. m., Mrs. Schneider spoke to Treesh. She asked Treesh if he knew the whereabouts of her husband and appellant, and he told her they were locked up in jail, to which she replied that she knew there was something going on and that she was going to see if she could discover anything. She invited Treesh to help her look. As they proceeded into the Schneider home, Treesh noticed two motorcycles of the same description that had been seen in front of the Jennings Store. Treesh had seen appellant and Schneider ride these on numerous occasions. Mrs. Schneider examined the saddlebags on the motorcycles, and then they went into the house where Mrs. Greenwalt was also present. The three proceeded to the basement where under some rafters Treesh discovered a plastic sack containing the rubber masks and the stockings which appellant had purchased on the night of the robbery. Next to the plastic sack, there was a box containing a twenty-two caliber pistol of an overall length of eleven inches with white pearl handles. After examining the items, Treesh replaced them where he had found them. Also, while in the basement, Mrs. Schneider removed some overalls from a dryer and stated that appellant and Schneider had worn them the night before and that they had been wet when they got off their motorcycles. Shortly after, Treesh notified the police who came and took the masks, stockings and pistol into their custody. Jennings identified the masks as the masks 'like I seen that night.'

In regard to the above evidence, appellant contends that it is insufficient to support the jury's verdict. In particular, appellant argues that he was never directly identified. Regarding identification, this court has repeatedly held that:

'The question of identity is one of fact and not of law. Therefore all evidence bearing upon the question must be submitted to the jury, and it is for the jury to determine whether it is satisfactory and trustworthy. * * *' Medsker v. State (1946), 224 Ind. 587, 590, 70 N.E.2d 182, 183.

And in regard to this point, this court has further stated:

'It is not essential, in order to sustain the conviction of appellant, that he should have been identified at the trial by positive or direct evidence, as the guilty person. It was sufficient if his identification as such person was established by circumstantial evidence which satisfied the jury * * * beyond a reasonable doubt.' Craig v. State (1908), 171 Ind. 317, 323, 86 N.E. 397, 400.

In addition to the above under proposition 'A,' appellant also contends that a conviction based on circumstantial evidence cannot stand on appeal. In response to this we state, and we have so held, that a conviction based on circumstantial evidence is valid if there is some substantial evidence of probative value from which a reasonable inference of guilt may be drawn. McCoy et al. v. State (1958), 237 Ind. 654, 660, 148 N.E.2d 190. And, concerning the presentation of 'substantial evidence,' this court recently confirmed the following rule of law in Indiana:

'* * * It is only when there is an absence of substantial evidence on an essential element of an alleged crime, or when the evidence is without conflict and leads to but one reasonable conclusion and the verdict of the jury reached a contrary conclusion, that the verdict will be disturbed as not being supported by sufficient evidence or as being contrary to law.' Weaver v. State (1963), 243 Ind. 560, 566, 187 N.E.2d 485, 488.

Despite all of the evidence set out above, appellant still argues in proposition 'A' that there was not sufficient evidence from which the jury could have connected appellant with the crime and found him guilty beyond a reasonable doubt. He further separately questions various findings of facts that do not individually constitute proof of the material allegations of the affidavit. These include questions in regard to the ownership of the revolver, why the masks were purchased, the presence of fingerprints on the rafters in the Schneiders' basement, and so on and so forth. In response to this, we state that it is well settled that this court need not be convinced beyond a reasonable doubt, and all that is required on appeal is that there be some evidence supporting every material allegation of the affidavit; and in determining whether a verdict or a finding is sustained by sufficient evidence, this court will not weigh conflicting evidence, but will consider only that tending to support the judgment. Arrington v. State (1952), 230 Ind. 384, 386, 103 N.E.2d 210.

Consequently, from a careful consideration of the evidence set out above, we conclude that there certainly was substantial evidence by which the jury could identify and connect appellant with the crime and by which the jury's verdict is thus sustained. As we stated very recently in Ponos v. State (1962), 243 Ind. 411, 414, 184 N.E.2d 10, 11:

'This court will not examine the record to determine whether or not the evidence sustained defendant's construction of the evidence in favor of his innocence. It will only consider whether or not the evidence is sufficient for the jury or court to form a basis for its finding of guilty. * * *'

Under proposition 'B' of his argument, appellant makes various points which basically go to: (a) The keeping of the jury together during the trial and not permitting them to separate, and (b) the keeping of the jury together during the period of deliberations.

Under the first point of ...