Lee v. State

• Decision Date: 26 April 1901
• Docket Number: 19,565
• Parties: Lee v. The State
• Court: Indiana Supreme Court

60 N.E. 299

156 Ind. 541

Lee v. The State

No. 19,565

Supreme Court of Indiana

April 26, 1901

From the St. Joseph Circuit Court.

Affirmed.

George Bradshaw, for appellant.

W. L Taylor, Attorney-General, Merrill Moores and C. C. Hadley for State.

OPINION

Jordan, J.

The first count of the information under which appellant was prosecuted charges him with having committed an assault and battery with the intent to rob. The second charges the actual commission of the robbery. Appellant was tried by a jury and convicted of the crime charged in the first count, and over his motion for a new trial was sentenced to be imprisoned in the state prison for an indeterminate period of not less than two nor more than fourteen years and was fined in the sum of $ 10. The only question presented and discussed by his counsel is that the verdict of the jury is contrary to both the law and the evidence. On the trial no evidence was introduced upon the part of the accused, and the truth of the evidence given by the State is not disputed by appellant, but its sufficiency to support the judgment is the only matter controverted.

The evidence relied upon by the State for conviction, so far as it went to connect appellant with the commission of the crime, was wholly circumstantial. The facts or circumstances in the case as disclosed by the record are substantially as follows: On October 24, 1900, in the city of South Bend, St Joseph county, Indiana, Frank Gooley, the prosecuting witness, was conducting a small grocery store which was situated at the junction of Cushing street, Rex street, and Portage avenue. An electric arc-light hung in the center of the street immediately in front of the grocery store and but a few feet distant from the front door leading into the store, and on the night of the alleged robbery this lamp was lighted. The front part of the store was, in the main, of glass, and a person could stand outside near this arc-light and see into and over the entire storeroom. There were two doors to the store, one in the front and the other in the rear. South of the store on Cushing street there was a barn or stable, the door of which was about sixty-five feet from the rear door of the store. Gooley's residence was situated about fifty feet in the rear of his store, and from the back door of his residence to the barn in question the distance was about twenty feet. Along the east side of the store was a counter and on the front end thereof there was a case in which cigars were kept for sale. Close to this cigar case was the money-drawer. On the night of October 24, 1900, appellant, who as it appears did not reside in South Bend and who was a stranger to Gooley, came to the grocery store of the latter about fifteen or twenty minutes before 8 o'clock. Before entering the store by the front door he stood for a short time and looked in and then entered and walked to the cigar case and asked for a cigar, and after selecting a five-cent cigar he handed Gooley a ten-cent piece of money, and Gooley opened the money-drawer and handed appellant the change coming to him. When Gooley opened the money-drawer it appears that appellant looked over towards the drawer. He lit the cigar which he had purchased, and inquired of Gooley the time of night. The latter took out of his pocket a gold watch, and upon giving appellant the time the latter remarked that he thought Gooley's watch was wrong, and then left the store. Two persons who were accustomed to spend their evenings at Gooley's grocery store, Foster and Thomas, were in the store when appellant came in and during the time he was in the store, and they remained at the store until it was closed for the night. A number of customers also came in the store that evening between 6 and 8 o'clock. After appellant left the store he went northwest on Portage avenue. In about fifteen minutes after he left, or near about 8 o'clock, he returned to the vicinity of the store and for a few minutes he was seen near the electric light on Rex street looking into the store, after which he turned away and started back in the direction from which he came. While standing looking into the store at the time last mentioned, appellant had something in his hand like a cane or umbrella, but what it actually was the evidence does not disclose. Foster upon leaving the store for his home at the time it was closed by Gooley saw appellant standing by a telephone pole about a block or less away from the store and near a street-car line. A colored man also identified upon the trial as appellant was seen walking away from the direction of Gooley's store about half past 8 o'clock on the night in question, and at that time he had something in his hand which he used in walking for a cane. The evidence discloses that Gooley usually closed his store about 8 o'clock at night unless he was detained by customers. On the night in question before closing the store he counted the money in his money-drawer and put it in his pocket, then turned out all of the lights except one and started to leave the store by the rear door, but before doing so he looked at his watch and saw that the time was twenty minutes past 8 o'clock. He immediately left by the rear door, locked it, and went to his barn in the rear of the store intending to lock the barn, and just as he took hold of the knob of the barn door to close it some person in the dark struck him down. At the time he was thus assaulted he had on his person $ 15 in money and a gold watch of the value of $ 25 dollars. After being thus struck down, as stated, he laid unconscious upon the ground until about 9 o'clock. After he was knocked down it appears that he was robbed of the money and watch heretofore mentioned, and also the keys and other effects which he had in his pockets were taken. It is shown to have been but a minute or two after Gooley left the store until he was assaulted. It was his custom to leave his store by the rear door after closing for the night and go to his residence situated as heretofore stated. On the evening in question two colored men were seen about 7 o'clock hitching a horse which was attached to a buggy at a point near the water-works in said city, which place was about a half mile from Gooley's store and was rather an unusual place for hitching horses. These two colored men were heard talking, by a witness, in a low tone, and their actions were such as to attract the attention of the witness. Upon leaving this place they went up into the city in the direction of Gooley's store. Appellant, together with another colored man by the name of Taylor, was seen to drive away in a buggy from a livery-stable in South Bend sometime between 6 and 7 o'clock, and they drove in the direction or towards the water-works. The superintendent or captain of the city police seems to have been notified thereafter that two colored men had hitched a horse near the water-works, and as the officers had been on the lookout for a horse that had been stolen or taken, the superintendent directed two policemen to go to the water-works where the horse was reported to be hitched and watch for the two men and require them to give an account of themselves. This direction was given before any notice of the robbery had been given to the police. The officers detailed went to the place where the horse was hitched and waited there until a few minutes of 9 o'clock, when appellant and his companion came from the...