Lawrence v. State, 30177
| Citation | 244 Ind. 305,192 N.E.2d 629 |
| Decision Date | 24 September 1963 |
| Docket Number | No. 30177,30177 |
| Parties | Joseph LAWRENCE and J. C. Morman, Appellants, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
John M. Heeter, Indianapolis, for appellants.
Edwin K. Steers, Atty. Gen., Indianapolis, William D. Ruckelshaus, Asst. Atty. Gen., for appellee.
Appellants were charged by affidavit in two counts filed in the Marion Criminal Court, Division No. 1, of Marion County, Indiana, with the crimes of First Degree Burglary (Count 1), and Grand Larceny (Count 2).
The first degree burglary count charged appellants with burglary of a dwelling house and place of human habitation of one Helen Johnson, located at 555 West 31st Street, Indianapolis, Indiana; count two charged appellants with felonious stealing and carrying away the personal goods and chattels of Helen Johnson, including numerous articles of lady's wearing apparel, one (1) table model radio and assorted fur pieces of the total value of One Thousand Dollars ($1,000.00).
Appellants appeared separately and severally, in person and by counsel, waived arraignment and each appellant entered a plea of not guilty to the charges.
The cause was tried to the court, witnesses were sworn, the State submitted its evidence and rested. Thereupon the appellants, separately and severally moved to be discharged as to each count of the affidavit. The court sustained the motions of each defendant as to count one and denied as to count two. The appellants thereupon submitted evidence in their behalf and rested, the State then submitted rebuttal evidence and rested. The court made a finding of guilty as to count two of the affidavit as to each of the appellants, ordered a pre-sentence investigation of appellants and continued the cause for sentencing to August 14, 1961, at which time the court pronounced judgment, which in pertinent part, reads as follows:
'Court sentences defendant Joseph Lawrence, age Twenty-nine (29) years to the Indiana State Reformatory for a period of not less than One nor more than Ten (10) years to be disfranchised during prison years and costs to be divided.
'Court pronounces Judgment and the Court sentences defendant J. C. Morman age Twenty-nine (29) to the Indiana State Reformatory for a period of not less than One (1) nor more than ten (10) years and costs to be divided.
'IT IS THEREFORE ORDERED ADJUDGED AND DECREED by the Court that the defendant J. C. Morman, age Twenty-nine (29) years for the offense by him be and is sentenced to the Indiana State Reformatory for a period of not less than One (1) nor more than Ten (10) years Costs to be divided, and Disfranchised during prison years.
'AND THE SHERIFF OF MARION COUNTY IS CHARGED WITH THE EXECUTION OF THIS JUDGMENT.'
On August 16, 1961, appellants, by counsel, filed their motion for a new trial, such motion, in pertinent part, reads as follows:
'1. That the verdict of the Court is not sustained by sufficient evidence and is contrary to law.
attorney has since the trial, discovered certain evidence material to the defense of the two defendants, which new evidence is as follows:
'(a) That a certain person by the name of Douglas Allen Davis allegedly confessed that he is the person who burglarized the house of Helen Johnson at 555 W. 31st Street, Indianapolis, Indiana, for which crime the above two defendants were tried.
'(b) That the said Douglas Allen Davis is a minor of the age of 18 and it is believed he is now living in Marion County and if a new trial was granted to these two defendants, the said Douglas Allen Davis will be a witness and testify in behalf of the defense; that he was the person who committed the robbery and grand larceny and that the two defendants herein did not participate in the robbery and in the grand larceny and are innocent of the charges.'
The motion for a new trial was overruled by the court on September 12, 1961, and the appellants thereupon filed their pauper affidavit praying the court to appoint an attorney to prosecute their appeal as poor persons pursuant to law; the court being duly advised granted said petition and appointed John M. Heeter as pauper attorney for appellants. Thereafter, appellants perfected this appeal.
The assignment of errors consists of a single specification, which reads in pertinent part as follows:
'The Court erred in overruling appellants' motion for new trial.'
The evidence most favorable to appellee may be summarized as follows: State's witness, Helen Johnson, testified that she lived at 554 West 31st Street in the City of Indianapolis, Marion County, Indiana, on March 3, 1961. That she left her room on the morning of March 3, 1961, about 9:00 a. m. She returned home between 10:30 and 11:00 p. m., that when she left the house it was locked, on her return home the light was on, the back door open, the closets had been ransacked, her clothes had been taken. She testified that she checked as to what was missing and found that her green radio, fur cape, fur pieces, winter coat, spring coat, a white coat and all of her dresses had been taken. She testified that when she discovered her loss she went to a neighbor's home, told them what had happened, then all of them came back to her home where she called the police. The police came, she told them what had happened and they left. Later, about 2:30 a. m. she had a telephone call from a person who identified himself as the captain from police headquarters, who stated he thought they had her clothes and asked her if she owned certain named items, she stated she did and was then requested to come down later in the morning and identify her clothes as they were at police headquarters. She testified that she went down to the police headquarters and found every one of her missing articles in the police property room. The police let her take back with her some of her clothing as she had nothing else to wear; they let her take her coat and five dresses. She further testified that she was not acquainted with either of the appellants and had never seen either of them.
Officer Erwin G. Russell testified as a witness for the State, that he was a police officer for the City of Indianapolis on March 3, 1961. Pursuant to a radio alarm he investigated a burglary at 554 West 31st Street, on March 3, 1961, and talked to a Mrs. Helen Johnson at that address. That he found the back window of the door on the north side of the building had been taken out and the house ransacked. That Mrs. Johnson gave him a list of the articles she knew were missing at that time and that he put out a description on the radio of the missing articles. That the Mrs. Johnson who had testified in court was the same Mrs. Johnson to whom he talked on the night of March 3, 1961. That he knew neither appellant Joseph Lawrence nor appellant, J. C. Morman, had never met them and knew nothing about them.
Richard A. Jones testified as a witness for the State, that he was a Detective Sergeant for the City of Indianapolis, Marion County, Indiana, on March 3, 1961. That he did investigate a burglary at 554 West 31st Street on that date. He testified that at about 11:05 p.m. on March 3, 1961, he was in police car No. 74, with Inspector Noel Jones driving south on North Capitol Avenue in the 2000 block, when they observed a 1953 black Pontiac with a 1961 dealers plate No. 4304M2 proceeding south on the 2000 block of North Capitol Avenue with no tail lights on it, the car was occupied by two colored men. The witness testified they followed the car, that it turned East on 18th Street from Capitol, then made another turn left at an alley. At that time the witness and his partner pulled up behind the car in a parking lot in the rear of 128 West 18th Street and turned on the red light on...
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