Kindred v. State, 369S47

• Decision Date: 29 April 1970
• Docket Number: No. 369S47,369S47
• Citation: 254 Ind. 73,21 Ind.Dec. 196,257 N.E.2d 667
• Parties: James KINDRED, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 667

257 N.E.2d 667

254 Ind. 73

James KINDRED, Appellant, v. STATE of Indiana, Appellee.

No. 369S47.

Supreme Court of Indiana.

April 29, 1970.

Foley & Foley, Ralph M. Foley, Martinsville, for appellant.

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

GIVAN, Judge.

Appellant was charged by affidavit with the crime of theft. Upon a plea of not guilty, the appellant was tried by the court and found guilty. He was sentenced to the Indiana Reformatory for a period of not less than one nor more than five years and fined $50 and costs.

The evidence most favorable to the State is that on April 2, 1968, one Clarence Taylor was employed by Fred Fishel as a filling station attendant operating a Sunoco Filling Station in Martinsville, Indiana. At 6:00 P.M. on that date Mr. Taylor in preparation for the changing of shifts at the station counted the money in the cash register and found it to be $202.60. The fact that this count was made was also verified by another witness, James Maxwell, who assisted in making the count. Another attendant, Russell Patton, Jr., testified that he came on duty at that time and that from 6:00 o'clock when he came on duty until 7:00 o'clock no other person was in the station or had access to the cash register except in his presence. That at 7:00 o'clock the appellant entered the filling station at a time when the witness, Russell Patton, was pumping gas into an automobile in front of the station. Mr. Patton testified that no other person was in the station at the time appellant entered. That after staying a few minutes the appellant left the station. The witness, Patton, immediately went in and observed the cash register was registering 'no sale.' He testified that he knew that he had not left the machine in that condition. He immediately again punched the no sale key, obtained a dime to call Mr. Fishel, the owner of the station.

Mr. Fishel testified that he received the call at about 7:00 P.M., came immediately to the station, again punched the no sale key, opened the register and determined that $53.32 was missing.

Appellant's first allegation of error is that there is a fatal variance between the affidavit and the proof in that he claims the affidavit charged the crime to have been committed March 2, 1968, whereas the proof established April 2, 1968. Upon an examination of the record in this case, we find the appellant to be in error in this regard. The transcript clearly shows the affidavit to allege the crime to have been committed April 2, 1968, which is also the date proved by the evidence submitted by the State. Appellant is, therefore, in error in his observation in this regard.

Next the appellant alleges that there is insufficient evidence to connect the appellant with the alleged crime. It is true that there is no direct evidence in the record that anyone actually saw the appellant remove any cash from the cash register; however, as above pointed out, the State's evidence is that the appellant has the only person in the station at a time when a no sale registration was made on the register. The attendant immediately called the owner of the station, who in turn checked out the register and discovered the shortage before anyone else had any opportunity to remove anything from the register. The law is clear in Indiana that the trier of fact may draw...