Keiton v. State
| Decision Date | 18 April 1968 |
| Docket Number | No. 30983,30983 |
| Citation | 250 Ind. 294,235 N.E.2d 695 |
| Parties | Patricia KEITON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
George R. Brawley, Fort Wayne, for appellant.
John J. Dillon, Atty. Gen., of Indiana, R. Robert Yeager, Richard Bennett, Deputy Attys., Gen., for appellee.
Appellant was charged by affidavit in one count with the crime of theft. The cause was tried by jury which rendered a verdict finding defendant guilty as charged in the affidavit. Thereafter the court entered judgment that appellant be imprisoned in the Indiana Women's Prison for not less than one (1) year nor more than ten (10) years and be fined Two Hundred ($200.00) Dollars and costs. From this judgment stems this appeal.
The affidavit, omitting formal parts, reads as follows, to-wit:
'Before me, Wayne L. Tash Prosecuting Attorney, 17th Judicial Circuit of Indiana, personally came Mrs. Helen Klemann who, being duly sworn, upon her oath says that Moses Butch Murray, Ivory Gordon, Patricia Keiton and Alice Gibson, late of Wayne County, State of Indiana, on the 30th day of September A.D., 1964, at and in the County of Wayne and State of Indiana, did then and there unlawfully commit the crime of theft in that they knowingly, unlawfully and feloniously obtained and exerted unauthorized control over the property of one Helen Klemann and one Paul Harris Stores Incorporated, a corporation, to wit: fourteen sweaters of the total approximate value of Two hundred Dollars, intending to deprive the said Helen Klemann and said Paul Harris, Incorporated, a corporation, permanently of the use and benefit of said property, then and there being contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.'
Upon arraignment appellant entered a plea of not guilty.
Trial was begun on February 1, 1966, by jury which returned its verdict herein on February 3, 1966, the same in pertinent part, together with the order book entry, reading as follows, to-wit:
'We, the jury, find defendant Patricia Keiton guilty as charged in the affidavit and should pay a fine in the sum of $200.00 (not over $5,000.00) and be imprisoned for not less than one year nor more than ten years, and be disfranchised and rendered incapable of holding any office of trust or profit for none years (not over ten years). That the true age of defendant is 28 years.
Thereafter the jury is polled by the defendant, verdict is his verdict. The Court defers pronouncing judgment until March 7, 1966, at 10:00 A.M. when the defendant shall appear in court for judgment and until then the defendant shall remain at liberty on her present bond. Also ordered that the Chief Adult Probation Officer files herein a pre-commitment investigation report by March 7, 1966.'
On March 3, 1966, appellant filed a Motion for New Trial. Such motion, omitting formal parts and signature, in pertinent part reads as follows:
'The defendant in the above entitled cause moves the Court for a new trial on each of the following grounds:
1. That the verdict of the jury is not sustained by sufficient evidence.
2. That the verdict of the jury is contrary to law.
3. Errors of law occurring at the trial as follows:
a. That the Court erred in failing to instruct the jury that it should find the value of the subject property to be of a specific or approximate sum b. That the Court erred in failing to give to the jury a form of verdict based upon a finding of the value of the subject property to be less than $100.00.
4. That the punishment specified in the verdict imposing a $200.00 fine and costs and imprisonment of one (1) to ten (10) years is excessive.
5. The Court erred in overruling Defendant's motion, made at the close of all the evidence, to instruct the jury to return a verdict for the Defendant.'
Appellant's Motion for New Trial was overruled by the court on March 4, 1966.
Thereafter on March 7, 1966, pre-commitment report was filed. Defendant in person, and by counsel, being present in open court and no legal reason being shown why judgment should not be pronounced, the court found the defendant guilty of the crime charged, namely Theft, and that her age was years. Judgment was thereupon rendered as follows:
'IT IS THEREFORE CONSIDERED, ADJUDGED AND DECREED by the Court that the said defendant, for the offense by her committed, do make her fine pyable to the State of Indiana in the penal sum of Two Hundred ($200.00) Dollars and costs and be imprisoned in the Indiana Women's Prison, penal department, for not less than one (1) year nor more than ten (10) years.'
Appellant's Assignment of Errors is the single specification:
The evidence most favorable to the State shows that on September 30, 1964, Marie Quaglio looked in the window of the Paul Harris Store and saw three women at the men's sweater counter. She went to the back of the store and told the assistant manager, Marjorie Dillon, that she should go to the front of the store. Mrs. Quaglio then went to the store office and told the manager, Helen Klemann, that she should go to the front of the store. Mrs. Dillon observed three women cramming sweaters under their arms and in their purses. Mrs. Klemann also saw the three women at the sweater counter. Mrs. Dillon and Mrs. Klemann identified the appellant as one of the three women. As the women left the store, Mrs. Dillon and Mrs. Klemann observed sweater sleeves and tags hanging from under the women's dresses. Mrs. Dillon called the police. Mrs. Klemann followed the women out of the store until they got into a car driven by a man. After considerable effort she got the license number of the car.
Captain Walter Stout of the Richmond Police Department was dispatched to the store by radio. He obtained the description and license number of the car from Mrs. Klemann. About two and one-half minutes after Captain Stout received the radio call, he stopped a car matching the description given him by Mrs. Klemann. The appellant was in the back seat of the car. Officers Terrell LaFuze and Gene Goodwin arrived at the scene in a short time. Captain Stout and Officer LaFuze observed the appellant shove what appeared to be a sweater underneath the back of the front seat. Captain Stout also saw two or three sweaters in the back seat between the appellant and another woman. The car and its occupants were taken to the Richmond police station where Mrs. Klemann identified the occupants. Mrs. Klemann observed that the three women were carrying purses, but the purses were flat, not full like they were when the women left the store. In Mrs. Klemann's presence, Officers LaFuze and Goodwin pulled 14 sweaters from under the front seat of the car. Price tags stamped Paul Harris Store were on several of the sweaters. The sweaters were valued at $214.80 by Mrs. Klemann.
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