Harris v. State
| Decision Date | 21 November 1972 |
| Docket Number | No. 2--672--A--23,2--672--A--23 |
| Citation | 289 N.E.2d 344,154 Ind.App. 129 |
| Parties | Nathaniel HARRIS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
David F. McNamar, Steers, Klee, Sullivan & Lemay, Indianapolis, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for plaintiff-appellee.
Appellant (Harris) was charged by affidavit with Theft, tried without jury, convicted, and sentenced to not less than one nor more than five years.
Harris' Motion to Carrect Errors presents two issues for review: (1) The verdict is not supported by sufficient evidence. (2) The verdict is contrary to law.
State's witness Lloyd McGinnis, an employee of a neighboring business, testified that on numerous occasions he had seen Harris drive up in a white, Econoline Ford truck, reach inside the Hoyt Machine Co. (Hoyt) building, pull out brass bars, load them into the truck and drive away. However, he could not testify that this occurred on September 13, 1971, the date alleged in the affidavit.
Harris maintains that this testimony cannot be considered because it failed to establish a date upon which the theft he saw was committed and therefore was not proven to have occurred within the Statute of Limitations.
Assuming this to be the case, for the purpose of argument, the question remains 'Is the other testimony plus the reasonable inferences to be drawn therefrom, sufficient to sustain the conviction?'
William Bray, an employee of Hoyt, testified that on September 13, 1971, he saw Harris pulling a brass bar from the storage rack inside the Hoyt building. Bray went to get his foreman and when he returned, 'they' were gone and a white Ford Econoline van was leaving.
George Bowling, an employee of Hoyt, saw Harris in the shop on September 13, 1971. He also saw a white Ford van at the shop on that date and three different occasions during the month of September, 1971.
Fred Sommer, partner of Hoyt testified that there were several brass rods missing from the shop when they were ready to use them, a week or ten days after September 13, 1971.
Harris testified he went to Hoyt on September 13, 1971, driving his white Ford van, seeking employment.
The elements necessary for conviction of theft under IC 1971, 35--17--5--3; Ind.Ann.Stat. § 10--3030 (Burns' Supp.1972), are (1) that Harris knowingly obtained or exerted unauthorized control over the brassbar, (2) with the intent to deprive the owner of the use or benefit thereof.
On appeal, we can neither weigh evidence nor determine witness' credibility. We must view the evidence and inferences therefrom, most favorable to the State and must affirm where there is evidence of probative value from which the trier of fact could infer guilt beyond a reasonable doubt. Buise v. State (1972), Ind., 281 N.E.2d 93 and Liston v. State (1969), 252 Ind. 502, 250 N.E.2d 739.
An eyewitness placed Harris at the Hoyt Machine Co. on September 13, 1971, pulling a brass bar from Hoyt's storage rack. This witness left to get his foreman and when he returned, Harris and the bar were missing and a truck like Harris' was driving away up the alley. This evidence was of sufficient probative value to permit the court to infer Harris' guilt, beyond a reasonable doubt.
Appellant also contends that the trial court erred in sentencing the defendant when it failed to inquire into his sanity at the time of his sentencing and that this was contrary to law.
After Harris was found guilty, a pre-commitment investigation report was duly filed with the court. It revealed that Harris had resided at Norman Beatty Hospital from September 26, 1961 to June 26, 1969 and Central State Hospital from June 26, 1969 to December 28, 1970. The report further stated:
During the trial Harris revealed on cross-examination that he had been confined at Westville in 1954.
The above report concluded by saying:
Harris maintains that IC 1971, 35--8--1--2; Ind.Ann.Stat. § 9--2252 (Burns' Supp.1972) required the court to consider the report. The statute reads in part:
'No defendant convicted of a felony shall be committed by any criminal court of record before a written precommitment investigation report, prepared by a probation officer, is presented to and considered by the sentencing court.' (Our emphasis).
We agree that the court had a statutory duty to consider the report but must conclude that the same was advisory only and not mandatory.
Harris next argues that IC 1971, 35--5--3--3; Ind.Ann.Stat. § 9--2217a (Burns' Supp.1972) required a sanity hearing due to the suggestion of the Probation Officer that Harris was 'still mentally insufficient'. This statute reads in part:
'When the defendant in a criminal cause appears for judgment, and the court, either from his own knowledge or upon the suggestion of any person, has reasonable ground for believing the defendant to be insane, the question of his insanity shall be determined by a jury . . .'
The above statute requires a sanity determination where the court 'has reasonable ground for believing the defendant to be insane'. An assertion of opinion by a probation officer does not bind the court in its determination. The test, as set forth in Cook v. State (1972), Ind., 284 N.E.2d 81, is:
'There must be a hearing when the evidence raises a bona fide doubt as to the defendant's competency.' (Citing Pate v. Robinson (1966), 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815.)
In Cook, the court held that a request by the defendant for a psychiatric examination constituted no evidence as to his mental condition, and where court-appointed psychiatrists found defendant competent to stand trial, there was no evidence raising a bona fide doubt as to defendant's sanity.
It has long been the law in Indiana that when a defendant in a criminal cause desires to plead that he was of unsound mind at the time the offense charged was committed, he must himself, or by his counsel, set up such a defense specially in writing. IC 1971, 35--5--2--1; Ind.Ann.Stat. § 9--1701 (Burns 1956).
In the case at bar however, Harris did not at any time plead insanity. He and his counsel did not...
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