Hash v. State

• Decision Date: 18 January 1973
• Docket Number: No. 1271S369,1271S369
• Citation: 291 N.E.2d 367,259 Ind. 683,34 Ind.Dec. 635
• Parties: Gary HASH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 367

291 N.E.2d 367

259 Ind. 683

Gary HASH, Appellant, v. STATE of Indiana, Appellee.

No. 1271S369.

Supreme Court of Indiana.

Jan. 18, 1973.

William T. Hornaday, Bloomington, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Appellant was charged by affidavit in two counts: Count I, Theft; Count II, Assault and battery with intent to commit a felony. Trial by court without a jury resulted in a finding of guilty under Count I resulting in a fine of $25 and a sentence to the Indiana State Reformatory for a period of one to five years, which sentence was suspended.

Appellant was found guilty under Count II of the lesser included offense of assault and battery. He was fined $10 and sentenced to the Indiana State Farm for 90 days.

The record discloses the following evidence:

Stephen Ray Carey, a senior at Indiana University, was a victim of an assault and battery and theft in the early morning hours of February 22, 1969. At the corner of Seventh and Jordan in Bloomington, Indiana, he passed two men standing near a light pole. As Carey passed them, they followed him. The two men separated, then rejoined at an automobile, which had come from behind an auditorium. Carey became suspicious of their actions and attempted to retrace his path, but as he attempted to retreat he was struck from behind. As he turned to face his assailant, he was again struck, then dragged up an incline to the graduate library parking lot. One of his assailants told him, 'All I want is your money.' When the men were unalbe to remove Carey's wallet from his pocket, he removed it and gave it to the appellant.

Carey testified that he got a good look at the appellant and could identify him as the person who struck him and robbed him.

The appellant offered an alibi that he was visiting his mother in Bloomington on the might of the offense. He testified that earlier that evening his car had broken down on the was to Bloomington; that he had hitchhiked into town where he was picked up by his sister, her husband and their two children, and his mother at a bowling alley. They took appellant to his mother's house where he immediately went to bed. This alibi was substantiated by his sister and his mother.

Appellant's sole contention is that there was not sufficient evidence as to the identification of the appellant to sustain the judgment of guilt.

When the sufficiency of the evidence is raised on appeal, this Court will consider that evidence most favorable to the State. Lambert v. State (1969), 252 Ind. 441, 249 N.E.2d 502, 18 Ind.Dec. 246.

On appeal, this Court will not weigh the evidence nor determine the credibility of the witnesses. Gaddis v. State (1969), 253 Ind. 73, 251 N.E.2d 658, 19 Ind.Dec. 74.

A conviction will be upheld where there is any evidence of a probative nature on the facts essential to support the judgment. Powell v. State (1970), 254 Ind. 200, 258 N.E.2d 633, 21 Ind.Dec. 455.

In examining this evidence we find that there were some discrepancies between Carey's testimony and his statements to the police and to counsel. However, it also appears that almost two years had passed between the crime and the trial. The trial judge was justified in taking this into consideration in weighing the testimony of Carey. The weight and credibility of Carey's testimony was solely within the province of the trial court. Stock v. State (1966), 247 Ind. 532, 219 N.E.2d 809. Notwithstanding the discrepancies in Carey'stestimony, he was nevertheless clear and certain in his identification of the appellant.

Following the assault, Carey had identified the...