Hubble v. State, No. 1271S383

Docket NºNo. 1271S383
Citation299 N.E.2d 612, 260 Ind. 655
Case DateAugust 06, 1973
CourtSupreme Court of Indiana

Page 612

299 N.E.2d 612
260 Ind. 655
Joseph A. HUBBLE, Appellant,
v.
STATE of Indiana, Appellee.
No. 1271S383.
Supreme Court of Indiana.
Aug. 6, 1973.

Page 613

John C. Mowrer, Danville, for appellant.

[260 Ind. 656] Theo. L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice. *

Appellant was charged by affidavit with the crime of second degree burglary. After trial by jury in the Hendricks Superior Court appellant was found guilty as charged and was sentenced to imprisonment at the Indiana Reformatory for a period of not less than two (2) nor more than five (5) years.

On appeal the appellant raises two issues, namely whether State's Exhibits 2, 3, 4, and 5 were properly admitted into evidence and whether the evidence was sufficient for the court to overrule defendant's motion for a directed verdict at the close of the state's evidence.

Appellant contends that it was reversible error for the court to admit State's Exhibits 2, 3, 4, and 5. Those Exhibits were photographs of the Maplecroft Drive-In premises taken by a deputy sheriff on July 9, 1971, three days before the trial of this cause. Defendant objects to the admission of these photographs for the reason that they did not depict the scene as it existed on March 31, 1971, the date of the burglary. At the outset it should be noted that although defendant's contention applies to each of the above-mentioned Exhibits, it is obvious that two of them are not involved in this issue. Two of the photographs are irrelevant to the issue presented. The major contention of the appellant is that the photographs showed a greater amount of foliage existing on the date they were taken than existed on the date of the crime. However, State's Exhibit 2 contains no foliage at all, but rather is a photograph of the door to the concession stand at the theater. In addition, State's Exhibit 3 does not show the bushes around the theater where the stolen goods were allegedly hidden by the defendant. Instead, Exhibit [260 Ind. 657] 3 showed bushes around the concession stand and the condition of the buildings on the date the photograph was taken. However, State's Exhibits 4 and 5 do show foliage near the motion picture screen where the stolen goods were hidden. The appellant contends that State's Exhibits 4 and 5, because they show additional foliage existing on the dates the photographs were taken, prejudiced the defense by misleading the jury with respect to whether the hidden stolen goods could have been seen by a normal passerby on March 31, 1971. The appellant suggests that this is crucial because the state sought to prove that only the perpetrators of the

Page 614

burglary would have known where the goods were hidden and could have gone so directly to them at the time the alleged perpetrators were observed by the state's witnesses. We think the appellant's contention is without merit because in offering the photographs into evidence the prosecution was careful to ask the deputy sheriff who took the photographs what they depicted and on what date the photographs were taken. In addition, the deputy sheriff testified that the premises did look somewhat different on March 31 than they did at the photographs were taken by saying, 'I think there would probably be more foliage now.' Since the jury was specifically apprised of the difference between what the scene looked like on the date of the burglary and the date the photographs were taken, we do not believe that they could have been misled. The fact that some conditions had changed at the time photographs were taken does not necessarily render the photographs inadmissible, but the changes, if material should be explained in such a way that the jury would not be misled. 3 Jones on Evidence § 17:53 (6th ed. 1972) and cases cited therein. In addition, after reviewing the record, it is clear that the photographs in question were not introduced for the sole purpose of showing the jury the shrubery in the area where the stolen goods...

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25 practice notes
  • Porter v. State, No. 177S14
    • United States
    • Indiana Supreme Court of Indiana
    • 3 Julio 1979
    ...any way abused its discretion in admitting them into evidence. Gill v. State, (1977) Ind., 368 N.E.2d 1159, 1162; Hubble v. State, (1973) 260 Ind. 655, 657-58, 299 N.E.2d 612, The appellant next argues that the trial court erred in State's tendered instructions number 11 and 12 over his obj......
  • Patterson v. State, No. 275S34
    • United States
    • Indiana Supreme Court of Indiana
    • 18 Marzo 1975
    ...natural propensities of the State sometimes to appeal to passions in its attempts to obtain convictions. Hubble v. State (1973), Ind., 299 N.E.2d 612; New v. State (1970), 254 Ind. 307, 259 N.E.2d 696; Randolph v. State (1954), 234 Ind. 57, 122 N.E.2d When prejudicial imbalance appears, thi......
  • Newell v. State, No. 4508
    • United States
    • United States State Supreme Court of Wyoming
    • 5 Abril 1976
    ...required to believe the defendant's explanation of possession. Callahan v. State, Tex.Cr.App.1973, 502 S.W.2d 3; Hubble v. State, 1973, 260 Ind. 655, 299 N.E.2d 612; State v. Clark, Mo.1969, 438 S.W.2d 277; Costin v. State, supra. The cases cited in this paragraph were jury-tried. The weakn......
  • Sizemore v. State, No. 1079S295
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Octubre 1979
    ...v. State, (1974), 161 Ind.App. 644, 317 N.E.2d 200; Gray v. State, (1974), 161 Ind.App. 70, 314 N.E.2d 798; Hubble v. State, (1973), 260 Ind. 655, 299 N.E.2d 612, or that each material Fact must be supported by substantial evidence of probative value. See, e. g., Powell v. State, (1970), 25......
  • Request a trial to view additional results
25 cases
  • Porter v. State, No. 177S14
    • United States
    • Indiana Supreme Court of Indiana
    • 3 Julio 1979
    ...any way abused its discretion in admitting them into evidence. Gill v. State, (1977) Ind., 368 N.E.2d 1159, 1162; Hubble v. State, (1973) 260 Ind. 655, 657-58, 299 N.E.2d 612, The appellant next argues that the trial court erred in State's tendered instructions number 11 and 12 over his obj......
  • Patterson v. State, No. 275S34
    • United States
    • Indiana Supreme Court of Indiana
    • 18 Marzo 1975
    ...natural propensities of the State sometimes to appeal to passions in its attempts to obtain convictions. Hubble v. State (1973), Ind., 299 N.E.2d 612; New v. State (1970), 254 Ind. 307, 259 N.E.2d 696; Randolph v. State (1954), 234 Ind. 57, 122 N.E.2d When prejudicial imbalance appears, thi......
  • Newell v. State, No. 4508
    • United States
    • United States State Supreme Court of Wyoming
    • 5 Abril 1976
    ...required to believe the defendant's explanation of possession. Callahan v. State, Tex.Cr.App.1973, 502 S.W.2d 3; Hubble v. State, 1973, 260 Ind. 655, 299 N.E.2d 612; State v. Clark, Mo.1969, 438 S.W.2d 277; Costin v. State, supra. The cases cited in this paragraph were jury-tried. The weakn......
  • Sizemore v. State, No. 1079S295
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Octubre 1979
    ...v. State, (1974), 161 Ind.App. 644, 317 N.E.2d 200; Gray v. State, (1974), 161 Ind.App. 70, 314 N.E.2d 798; Hubble v. State, (1973), 260 Ind. 655, 299 N.E.2d 612, or that each material Fact must be supported by substantial evidence of probative value. See, e. g., Powell v. State, (1970), 25......
  • Request a trial to view additional results

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