Gunder v. State, 867S59

• Decision Date: 16 July 1968
• Docket Number: No. 867S59,867S59
• Citation: 238 N.E.2d 655,250 Ind. 689
• Parties: Edward E. GUNDER, Kenneth L. Morris, and James R. Myers, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 655

238 N.E.2d 655

250 Ind. 689

Edward E. GUNDER, Kenneth L. Morris, and James R. Myers, Appellants, v. STATE of Indiana, Appellee.

No. 867S59.

Supreme Court of Indiana.

July 16, 1968.

Rehearing Denied Sept. 26, 1968.

Howard S. Grim, Jr., Edgar A. Grim, Kendallville, for appellant.

John J. Dillon, Atty. Gen., Dennis J. Dewey, Deputy Atty. Gen., for appellee.

PER CURIAM.

This is an appeal from the conviction of theft. The appellants appealed from their conviction in the Noble Circuit Court on count two of the affidavit charging theft which reads as follows:

'Roy Sayles, Jr., being first duly sworn upon his oath, and for a second court, says that on or about the 3rd day of February, 1967, in the County of Noble, State of Indiana, that Edward E. Gunder, and Kenneth L. Morris and James R. Myers, committed the crime of theft, in that they knowingly, unlawfully and feloniously, obtained and exerted unauthorized control over property of and in a lawful possession of Edward Maloney and Charles Chapman, to-wit: one (1) prophylactic coin operated dispenser, of the total value of twenty-five dollars (25.00), Serial Number B10506, intending to deprive the said Edward Maloney and Charles Chapman permanently of the use and benefit of said property, contrary to the forms of the statutes in such cases made and provided and against the peace and dignity of the State of Indiana.'

The original charges were in two counts, the first charging breaking and entering with intent and the second charging theft. After a trial by jury, a verdict of guilty on both counts was returned. Subsequently the court sentenced the defendants on both counts, sentence to run concurrently. Thereafter, on motion of counsel, it was pointed out that one of the defendants, James R. Myers was under the age of twenty-one and subject to the Minor Sentencing Act. The court thereafter corrected the sentence to one year on the Indiana State Farm. The appellants then filed a motion for a new trial which was sustained by the court as to Count One and accepted by the State as to that count. The appellants' motion, however, was overruled as to Count Two.

The appellants have assigned as error the overruling of appellants' motion for a new trial and have raised four issues; the verdict of the jury on Count Two is contrary to law and not sustained by sufficient evidence; that there was error of law occurring at the trial in that the court did not declare a mistrial because of testimony concerning another crime; that there was further error of law in the court's overruling defendants' to motion to strike evidence and in failing to admonish the jury to disregard the same, and lastly that the court erred in not directing a verdict for the defendants.

The evidence indicated that shortly after midnight on February 3, 1967 a reddish pink or reddish maroon 1959 Pontiac with one headlight missing backed up to the Wolf Lake Marathon Station in Wolf Lake, Indiana. That there were banging noises going on and immediately upon the departure of the above described authomobile an investigation of the restroom resulted in the finding that three dispensing machines previously attached to the wall were removed from the wall and that two of them were gone. These two were later found on a farm not far from the above station. The appellants were identified as driving and riding as passengers in the said car on February 2, 1967, and early in the morning of February 3, 1967 when the car was stopped for having only one headlight. They were placed at the scene of the theft shortly after midnight February 3, 1967 and were seen leaving the scene and proceeding to a location nearby where the two missing machines were later found. Paint samples taken from the debris in the automobile showed paint of a similar nature on the stolen machines present in the car. Upon this evidence the jury found them guilty beyond a reasonable dout.

In an appeal from a criminal conviction it is well settled law that the state is entitled to the most favorable version of the evidence and all reasonable inferences that may be drawn therefrom and that this court will consider only that evidence most favorable to the state: Greenawalt v. State (1965), 246 Ind. 608, 209 N.E.2d 254, 210 N.E.2d 373; Tait v. State (1963), 244 Ind. 35, 188 N.E.2d 537; Epps v. State (1963), 244 Ind. 515, 192 N.E.2d 459.

Likewise, it is also true that this court will not determine the credibility of witnesses when the question of sufficiency of evidence is raised: Beatty v. State (1963), 244 Ind. 598, 194 N.E.2d 727; Myers v. State (1960), 240 Ind. 641, 168 N.E.2d 220. Thus, the conflict in testimony was for the trier of fact, the jury, and their decision should not be disturbed.

The statute under which appellant's conviction was based is Burns' Ind. Stat. § 10--3030, 1967 Cum.Supp., commonly referred to as the 'Theft Act'. The pertinent sections are as follows:

'A person commits theft when he

(1) knowingly:

(a) otains or exerts unauthorized control over property of the owner; * * *

(2) either

(a) intends to deprive the owner permanently of the use or benefit of the property; or * * *.'

The appellants raised the question that the ownership of or right of possession to the property or value of the property alleged to have been stolen had not been established by the state.

The definition of the 'Theft Act' clarifies two of the question which arise in a situation such as the one at bar.

Burns' Ind. Stat.Ann. § 10--3040, (12) and (15) read in part as follows:

'(12) 'Owner' means a person, other than the actor, who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the actor has no authority to obtain or exert the complained of control over the property.

(15) 'Property' means anything of value. Property includes real as well as personal property; * * * things growing on, affixed to, or found on or in land or part of or affixed to any building; * * * (Acts 1963 (Spec.Sess.), Ch. 10, § 13, p. 10.)'

Under Burns' § 10--3040 (12) supra, even illegal possession would have been sufficient as long as possession had been established. The evidence indicated that the machines were in the lawful possession of the owner of the said station and that they were paid a percentage out of what the machines brought in, and that the owner Chapman, who testified, believed they were his machines.

In two most recent cases, R. L. Lake v. State (1967), Ind., 229 N.E.2d 724, Judge Lewis, speaking for the court which unanimously concurred, held that it need not be proven that the absolute ownership of the property...