Hallums v. State, 30997

• Decision Date: 03 January 1968
• Docket Number: No. 30997,30997
• Citation: 249 Ind. 309,232 N.E.2d 597
• Parties: Howard HALLUMS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 597

232 N.E.2d 597

249 Ind. 309

Howard HALLUMS, Appellant, v. STATE of Indiana, Appellee.

No. 30997.

Supreme Court of Indiana.

Jan. 3, 1968.

Don R. Money, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Murray West, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Judge.

Appellant was charged with robbery and was convicted of assault with intent to commit a felony under Burns' Ind.Stat.Anno. § 10--401 (1956 Repl.), and was sentenced accordingly. This latter offense is an included offense in the crime of robbery. Johnson v. Dowd, Warden (1963), 244 Ind. 496, 193 N.E.2d 906.

The trial was by the court without a jury. The only contention made upon appeal is that the evidence does not sustain the finding of guilty for the reason that there is a lack of evidence as to the identity of the defendant. For this reason, we must briefly review the evidence most favorable to the State.

It appears that Dominick Gentile was a grocer who operated a grocery known as Pinky's Market at 2636 N. Harding, Indianapolis; that at 10:00 a.m. on November 16, 1965, while his back was turned, somebody came in the back door of his shop and put a gun at his head and made him go back to the meat counter and said: 'Give me your wallet' and he gave the robber his wallet. Then he also took from Gentile's side pocket an envelope containing money and said: 'Now you march up to the front of the store and clean out the cash register.' Gentile testified that he took approximately $1200.00 in all from him at the time. Gentile said that he did not see the face of the robber and did not know whether he was white or negro.

Leona Brady testified as a witness that she lived next door to Pinky's Market above a hardware store; that about 10:00 o'clock on the day of the robbery she was sitting by her window and looking out, saw two men below the window. She testified:

'Q. Was the defendant one of those persons under your window?

'A. Yes ma'am. He and another boy, not quite as tall as he is.'

She testified that she heard them in a conversation and that the defendant said:

'You go on, I think I can take him now because he is in the back.'

She testified she then said to him:

"If I were you, young man, I wouldn't do that', and he looked up in my face, my window. He looked right up at me for a few minutes, and I thought maybe he'd run back the other way.'

She then says instead of his leaving like she thought he would, he went toward the rear of the grocery store and when she got downstairs he was coming back and ran up the alley. She said she then called the police. On cross-examination, she said she saw no mask on his face, and further stated:

'Q. Now, if somebody else was to testify in this trial that the man that went in that store that day had a mask on his face, would you be mistaken on your description?

'A. Now listen, sir, I saw the man's face. I didn't see the mask.

'Q. Did you see this man hold a gun to Mr. Gintile's head?

'A. I certainly didn't.

'Q. So, you don't know whether this is the same man * * *

'A. Yes, I know he is the man because * * *

'Q. He's the man you saw outside the window?

'A. He's the man, sir, that I saw outside my window * * *

'Q. Alright.

'A. * * * and he's the man that I saw running by the time I got downstairs. He came back the same way he went, sir.

'Q. You saw this man outside your window? Is that right?

'A. I certainly did.

'Q. And, you saw this man run?

'A. I saw him run.'

'Q. Which direction was the man running from when you saw him?

'A. He was running from the part back where the grocery is and he came right back like he went. There's a little barbwire fence there and the reason it is, there's a little narrow place, it's not a street, it's just between a vacant building, and I can stand up there in my window and hear a lot of things, as far as that's concerned, and I heard that.'

Other testimony consisted of the police investigation, and a witness, myrtle Josephine Winters, testified that as she left the drug store and was walking towards Pinky's Market:

'* * * I saw a man standing behind Pinky, who is the owner of the store. He had--he was standing directly behind him. Then I went into the store. He was still behind him and he was behind the cash register. He had on a red knitted cap, dark sunglasses and a handkerchief over his face.'

She further testified he was a negro, about six foot three, weighing about one hundred and seventy-five pounds; that she saw him leave the store by the rear or north door and that he 'went north'; that this is in the direction of the hardware store next to Pinky's Market. She further testified:

'Q. Can you identify the gentleman?

'A. Yes. He looks just like that man. I cannot identify him by his face, by what he had on his face, but he is the the same height as the defendant and everything.'

The appellant places great reliance upon the case of Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641. However, that case may be easily distinguished from the one here, since an attempt was made to identify the defendant and by the person who was robbed while the robber had a handkerchief over his face. There was no corroborating evidence as to identification and the identifying witness had made contradictory statements that she could not identify any particular man. The court said in that case at 236 Ind. 55, 58, 138 N.E.2d 641, 643:

'We have carefully read and reread the entire bill of exceptions in this cause, since this conviction can only be sustained by holding the dubious testimony of Mary Kriech as to the identity of the appellant, uncorroborated as to any material essential, and contradicted by unimpeached evidence of an alibi, was sufficient to prove the appellant guilty beyond a reasonable doubt of the offense charged.'

In the case before us the identification of the defendant as the person who made a statement indicating a robbery is uncontradicted. The evidence is uncontradicted that he was seen going to the rear of the grocery store and running therefrom immediately thereafter. This is corroborated by a witness who came into the store and saw the robber leave through the rear door, corroborating the statement of Mrs. Brady that the appellant had gone, and came back from the rear of the store. There is no testimony as to any alibi of the defendant in this case. Under the circumstances we feel there was sufficient evidence, together with all reasonable inferences, to sustain the finding of the trial court. Mason v. State (1963), 244 Ind. 206, 191 N.E.2d 705; Donaldson v. State (1952), 231 Ind. 434, 108 N.E.2d 888; Gilmore v. State (1951), 229 Ind. 359, 98 N.E.2d 677.

The judgment of the trial court is affirmed.

LEWIS, C.J., and MOTE and HUNTER, JJ., concur.

JACKSON, J., dissents with opinion.

JACKSON, Justice (dissenting).

I am unable to concur in the majority opinion herein and dissent thereto.

Appellant was charged by affidavit filed in Marion Criminal Court with the crime of robbery. The affidavit, omitting heading, formal parts and signatures, reads as follows, to-wit:

'BE IT REMEMBERED, That, on this day before me, NOBLE R. PEARCY, Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came DONALD C. ANDERSON who, being duly sworn, upon his oath says that HOWARD HALLUMS on or about the 16th day of NOVEMBER, A.D. 1965, at and in the County of Marion in the State of Indiana, did then and there unlawfully, feloniously, forcibly by violence and putting DOMINICK GENTILE, doing business as PINKY'S MARKET, in fear, take from the person and possession of the said DOMINICK GENTILE, doing business as PINKY'S MARKET, money then and there of the value of ONE THOUSAND DOLLARS ($1,000.00) in lawful money, which property the said DOMINICK GENTILE, doing business as PINKY'S MARKET, then and there lawfully held in his possession and was then and there the property of DOMINICK GENTILE, doing business as PINKY'S MARKET, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

Appellant waived assignment and entered a plea of not guilty.

The cause was tried to the court without the intervention of a jury, resulting in the appellant being found guilty of Assault with Intent to Commit a Felony. The appellant was sentenced to the Indiana State Reformatory for not less than one (1) year nor more than ten (10) years.

Appellant contends on appeal that the decision of the trial court was...