Holliday v. State, 669

• Court: Indiana Supreme Court
• Writing for the Court: HUNTER; JACKSON
• Citation: Holliday v. State, 257 N.E.2d 679, 254 Ind. 85 (Ind. 1970)
• Decision Date: 30 April 1970
• Docket Number: No. 669,669
• Parties: Marcus Ray HOLLIDAY, Appellant, v. STATE of Indiana, Appellee. S 131.

Page 679

257 N.E.2d 679

254 Ind. 85

Marcus Ray HOLLIDAY, Appellant, v. STATE of Indiana, Appellee.

No. 669 S 131.

Supreme Court of Indiana.

April 30, 1970.

Leo J. Lamberson, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Deputy Atty. Gen., for appellee.

HUNTER, Chief Justice.

Appellant was tried by jury in the St. Joseph Superior Court and found guilty of the crime of theft by deception. He was sentenced to the Indiana Reformatory for a period of from one (1) to ten (10) years.

The crime of theft by deception is found at Ind.Ann.Stat. § 10--3030(1)(b) (1969 Supp.) and reads as follows:

'A person commits theft when he

(1) knowingly: * * *

(b) obtains by deception control over property of the owner * * * (and) intends to deprive the owner permanently of the use or benefit of the property * * *.'

Upon the rendition by the jury of a verdict of guilty as charged, appellant filed a timely motion for a new trial. Said motion was overruled by the trial court and appellant brings this appeal assigning as error the overruling thereof. Appellant raises the following arguments in his memorandum:

(1) The trial judge erred in denying appellant's motion for a directed verdict at the close of the State's case-in-chief.

(2) The jury's verdict of guilty was not sustained by sufficient evidence.

(3) The trial judge erred in giving State's tendered instruction No. 2 over defendant's objection.

For the purposes of this appeal, arguments number (1) and number (2) will be combined and disposed of as one. Clearly if there is sufficient evidence as a matter of law to sustain the jury's verdict beyond a reasonable doubt, then the denial of appellant's motion for a directed verdict would have been proper. To avoid a directed verdict the State merely has to make out a prima facie case. The record before us indicates that all of the State's evidence was presented to the jury by way of its case-in-chief, thus it is the same quantum of evidence which the directed verdict challenged that the jury used as a basis for its verdict.

In order to sustain the verdict of guilty in a criminal trial, each element of the crime charged must be established by substantial evidence of probative value, so as to convince the trier of fact beyond a reasonable doubt. Manlove v. State (1968), Ind., 232 N.E.2d 874; Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6. In looking at the sufficiency of the evidence this court on appeal will examine only that evidence and the reasonable inferences deducible therefrom which are most favorable to the state. Carter v. State (1968), Ind., 234 N.E.2d 850; Capps v. State (1967), 248 Ind. 472, 229 N.E.2d 794. We will not weigh the evidence, nor determine the credibility of witnesses. Leaver v. State (1968), Ind., 237 N.E.2d 368. Stock v. State (1966), 247 Ind. 532, 219 N.E.2d 809.

There are two elements of the crime of theft by deception: The person knowingly obtains by deception control over property of the owner, and (2) the person intends to deprive the owner permanently of the use or benefit of the property. In the case at bar as revealed by the record, appellant was employed as a truck driver by the Indiana Motor Service, Inc. during the period, December 18--19, 1967. On or about December 18, 1967, the Indiana Motor Service Co. office was burglarized. Among the items reported stolen by the said company were several sheets of blank checks and a check protector. Although testimony at the trial indicated that the burglars had entered the Motor Service's office through the driver's room and that appellant had a key to that room, we believe such evidence to be immaterial to the issues in this case.

On the day following the burglary, towit: December 19, 1967, appellant presented a check in the amount of One Hundred ($100) Dollars for payment at Steve and Irene's Tavern in South Bend, Indiana. The check was identified as one of those 'stolen' during the burglary. The name of William J. Nelson, manager of the truck line, appeared as drawer on the check, but the evidence adduced at the trial indicated that the signature of the purported drawer was neither that of William J. Nelson nor that of either of his secretaries. Furthermore the check, drafted on a typewriter, varied on its face from the other payroll checks of the Indiana Motor Service, Inc., in that only lower case letters were used. States' exhibit #1 appears immediately below. The check was blank when it was reported stolen on December 18th, and was not issued by anyone authorized by IMS to do so. Appellant appeared to have no difficulty cashing it at Steve and Irene's Tavern inasmuch as he was a regular patron of the said establishment and had previously cashed between twenty and thirty checks drawn on the same account.

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Moreover, state's witness Robert Copeland, a South Bend Police Officer, testified that he had asked the appellant during this investigation of the burglary of the checks and the subsequent negotiation thereof, whether he (appellant) knew anything about the said burglary. Appellant, according to Officer Copeland, told him that 'he had been drunk the night of it and there was another guy with him and he had gotten his keys and got these checks.'

We believe that this evidence together with the reasonable inferences deducible therefrom is sufficient as a matter of law to sustain the jury's verdict. The property over which the jury found that appellant had exercised control by deception was the One Hundred ($100) Dollars received when he cashed the check. That appellant intended to deprive Ted and Irene's Tavern of the money may reasonably be inferred from the facts and circumstances of the deception involved. In view of the above, appellant's arguments (1) and (2) relating to the sufficiency of the evidence are hereby rejected as being without merit.

Appellant next argues that he was prejudiced by...