Hubble v. State, No. 2--173A20

• Docket Nº: No. 2--173A20
• Citation: 157 Ind.App. 684, 301 N.E.2d 396
• Case Date: September 27, 1973
• Court: Court of Appeals of Indiana

Page 396

301 N.E.2d 396 157 Ind.App. 684 James HUBBLE, Appellant (Defendant, Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 2--173A20. Court of Appeals of Indiana, Third District. Sept. 27, 1973.

[157 Ind.App. 685]

Page 397

Richard L. Milan, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

I.

STATEMENT ON THE APPEAL

Indianapolis Police Officer David Cress was employed part-time at the G. C. Murphy Company. He was told by one of the saleswomen that a crime of theft had been committed in the store. A description of the man and the automobile that he was seen getting into was given to Officer Cress. This information was immediately telephoned into the indianapolis Police Department Dispatcher and a police car was sent to the store. Approximately ten (10) minutes later, an automobile with a passenger answering the description given to Officer Cress was observed, stopped, and the [157 Ind.App. 686] passenger arrested. Two adding machines with G. C. Murphy Company price tages on them were found in the rear seat. James Hubble, the passenger, was charged with possession of stolen property ¹ and theft. ² The trial court found Hubble not guilty of possession of stolen property but did find him guilty of theft. Hubble was sentenced to imprisonment for a period of one year at the Indiana State Farm with six months suspended.

Sufficiency of the evidence to sustain the conviction on the charge of theft is the only issue that will be discussed in this opinion.

We conclude in our opinion that the evidence was not sufficient to sustain the conviction for theft. We reverse.

II.

STATEMENT OF THE FACTS

David Cress, an Indianapolis Police Officer, was working his part-time job at the G. C. Murphy Company, 1043 Virginia Avenue, Indianapolis, Indiana on February 16, 1972. A saleswoman reported to Officer Cress that a crime had been committed by a male negro wearing a multi-colored red shirt and dark pants who had gotten into a black 1966 Chevrolet. Officer Cress called police headquarters, and a police car was sent to Murphy's. Approximately ten (10) minutes after this call, the police car picked up Officer Cress who observed a black 1966 Chevrolet traveling north on Virginia Avenue. The officers stopped the car which contained two occupants and two adding machines with G. C. Murphy price tags on them in the back seat. James Hubble was in the passenger seat, and Officer Cress testified that he was wearing a multi-colored red shirt and dark pants. The occupants of the [157 Ind.App. 687] car were taken back to Murphy's, but the saleswoman refused to identify either James Hubble or the black Chevrolet. The assistant manager of the G. C. Murphy Company identified the adding machines as a brand sold by the store and identified the Murphy price tags. He testified that the value of the adding machines was $42.99 each.

Page 398

III.

STATEMENT OF THE ISSUE

The only necessary issue to be discussed for the purpose of this opinion is:

Was there sufficient evidence to sustain a conviction of theft?

We conclude that there was insufficient evidence and reverse.

IV.

STATEMENT ON THE LAW

Theft under our statute, I.C.1971; 35--17--5--3; Ind.Stat.Ann. § 10--3030 (Burns 1972 Supp.), requires that the State of Indiana prove: (1) that James Hubble obtained or exerted unauthorized control over the property of G. C. Murphy Company, and (2) with the intent to deprive the G. C. Murphy Company of the use and benefit of such property.

When this court is considering the sufficiency of the evidence, we will consider only that evidence most favorable to the State with all reasonable inferences which may be drawn therefrom. The conviction will be affirmed if, from that point of view, there is substantial evidence of probative value from which the trier of fact could reasonably infer than the defendant was guilty beyond a reasonable doubt. Rogers v. State (1972), Ind.App., 290 N.E.2d 135; Taylor v. State (1972), Ind., [157 Ind.App. 688] 284 N.E.2d 775. We will not weigh the evidence nor resolve questions of credibility of witnesses. Walker v. State (1973), Ind.App., 293 N.E.2d 35; Smith v. State (1970), 254 Ind. 401, 260 N.E.2d 558.

Our function on appeal is: '. . . to insure that the State has sustained its burden of proof on the material elements of the crime charged, and that these elements are supported by substantial evidence.' Phillips v. State (1973), Ind., 295 N.E.2d 592, 594.

The hearsay testimony of Officer Cress, which was based upon what a saleswoman at G. C. Murphy Company had told him prior to Hubble's arrest, is not evidence of Hubble's guilt. The saleswoman did not testify. Officer Cress' testimony was admitted for the sole purpose of showing corpus delicti, a crime had been committed by someone. It explains Officer Cress' actions and the probable cause for stopping and arresting Hubble. Here, its evidentiary significance stops.

Neither the driver nor Hubble acted suspiciously before being arrested. The adding machines were not concealed. They were in the backseat and easily discovered by Officer Cress. The only statement made to Officer Cress was '. . . they just wanted to know why they were arrested, was all.' There is no circumstantial evidence connecting Hubble with the initial corpus...