Lenovich v. State, 29498

CourtSupreme Court of Indiana
Citation238 Ind. 359,150 N.E.2d 884
Docket NumberNo. 29498,29498
PartiesWilliam Anthony LENOVICH, Appellant, v. STATE of Indiana, Appellee.
Decision Date09 June 1958

Myrten W. Davie and Robert J. Salek, LaPorte, for appellant.

Edwin K. Steers, Atty. Gen. of Indiana, Owen S. Boling and Merl M. Wall, Dep. Attys. Gen., for appellee.

EMMERT, Judge.

This is an appeal from a judgment on a verdict that appellant was guilty of automobile banditry as charged in the Second Count of an affidavit, for which he was sentenced to the Indiana State Prison for 10 years. Appellant pleaded not guilty, and filed a special plea of insanity under § 9-1701, Burns' 1956 Replacement. He assigns error in overruling his motion for a new trial.

Appellant's motion for a new trial maintains that the verdict was contrary to law and not supported by sufficient evidence. This court on appeal will not weigh the evidence when its sufficiency is questioned, but will examine the record to see if there is any evidence, or any reasonable inference which may be drawn from the evidence, which would sustain the verdict of the jury. Todd v. State, 1951, 230 Ind. 85, 87, 101 N.E.2d 922; Shacklett v. State, 1926, 197 Ind. 323, 150 N.E. 758; Osborn v. State 1927, 199 Ind. 44, 154 N.E. 865; Erfman v. State, 1935, 207 Ind. 673, 194 N.E. 326; McAdams v. State, 1948, 226 Ind. 403, 81 N.E.2d 671.

The uncontradicted evidence from the transcript, which extends through 725 pages, shows the following facts: On the late evening of January 20, 1956, at about 11:30 o'clock appellant was a patron in Luebker Tavern located on the west side of LaPorte, Indiana. It was a cold night and a light snow covered the ground. At approximately 11:50 o'clock appellant, after having one bottle of beer, left the tavern and walked to the car he had been driving, which was parked behind other cars on a used car lot located across the street and south of Luebker Tavern, a distance of 300 to 400 feet. From this car appellant obtained a screw driver, pliers, and a small wrench. In his written confession appellant said he first walked toward town but then returned to the tavern after it had closed. He broke the front door glass and entered through the opening. Between 12:15 and 12:30 A.M., he was discovered inside the tavern by the LaPorte police. After he was apprehended the tools were found in his possession, in addition to $16.55, only $1.00 of which the appellant claimed as his money. Examination of the premises showed that cash had been removed from the cash register and the juke box had been broken. While being led to the police squad car appellant broke from the officer's grasp and ran a short distance before being apprehended again.

The statute defining automobile banditry provides: 'If any person or persons shall commit or attempt to commit a felony, having at the time on or near the premises where such felony is attempted or committed, an automobile, motorcycle, airplane, or other self-moving conveyance, by the use of which he or they escape, attempt to escape or intend to escape, or having attempted or commited such felony, he or they seize an automobile, motorcycle, airplance, or other self-moving conveyance, by the use of which he or they escape or attempt to escape, he, they and each of them shall be guilty of automobile banditry, * * *.' Section 10-4710, Burns' 1956 Replacement.

Whether appellant intended to use the automobile he had parked on the used car lot to escape was a question of fact for the jury. In a similar case this court reasoned:

'It is true that the automobile in this case was parked about a block and a half from the store building, and when apprehended the appellant was not running directly toward it. However, we cannot say as a matter of law that the automobile was too far away to be considered as being 'on or near the premises' where the felony was attempted. That question would be one fact to be determined by the court or jury under the circumstances of each particular case.' Barrick v. State, 1954, 233 Ind. 333, 340, 119 N.E.2d 550, 554.

The jury was justified in finding appellant intended to use the automobile he had parked on the used car lot earlier in the evening to leave the scene after he had committed the burglary. Appellant's parents, who owned the automobile and with whom he stayed when not working, lived several miles away on the east side of LaPorte. Appellant had the keys to the car in his possession when apprehended. It is reasonable to infer that the appellant intended to use the...

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9 cases
  • Bimbow v. State
    • United States
    • Court of Appeals of Indiana
    • August 29, 1974
    ...at the time of trial and at the time of commission of the offense. Majors v. State (1974), Ind.App., 310 N.E.2d 283; Lenovich v. State (1958), 238 Ind. 359, 150 N.E.2d 884; Flowers v. State (1956), 236 Ind. 151, 139 N.E.2d 185; Brattain v. State (1945), 223 Ind. 489, 61 N.E.2d 462; Sharp v.......
  • Shipman v. State
    • United States
    • Supreme Court of Indiana
    • June 26, 1962
    ...387; Coffer v. State (1959), 239 Ind. 22, 154 N.E.2d 371; Leslie v. State (1959), 239 Ind. 462, 158 N.E.2d 654; Lenovich v. State (1958), 238 Ind. 359, 150 N.E.2d 884; Mack v. State (1957), 236 Ind. 468, 139 N.E.2d We next consider appellant's contention that the trial court erred in admitt......
  • Kaplan v. Tilles, Inc.
    • United States
    • Court of Appeals of Indiana
    • December 9, 1961
    ...R. R. Co. v. Sholl et al., 128 Ind.App. 134, 146 N.E.2d 565; Bange v. State, 1958, 237 Ind. 422, 146 N.E.2d 811; Lenovich v. State, 1958, 238 Ind. 359, 150 N.E.2d 884. Of course, the trial court is not required to state all the law in the case in each instruction 'All the instructions given......
  • Hall v. State
    • United States
    • Supreme Court of Indiana
    • July 21, 1972
    ...was committed. Burnett v. State (1970), Ind., 255 N.E.2d 529; Metz v. State (1963), 244 Ind. 536, 194 N.E.2d 617; Lenovich v. State (1958), 238 Ind. 359, 150 N.E.2d 884; McCoy v. State (1958), 237 Ind. 654, 148 N.E.2d 190; Barrick v. State (1954), 233 Ind. 333, 119 N.E.2d 550. In this case,......
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