Lipscomb v. State, 569S125

• Decision Date: 15 September 1970
• Docket Number: No. 569S125,569S125
• Citation: 254 Ind. 642,261 N.E.2d 860,22 Ind.Dec. 624
• Court: Indiana Supreme Court
• Parties: Arthur LIPSCOMB, Appellant, v. STATE of Indiana, Appellee.

Page 860

261 N.E.2d 860

254 Ind. 642

Arthur LIPSCOMB, Appellant, v. STATE of Indiana, Appellee.

No. 569S125.

Supreme Court of Indiana.

Sept. 15, 1970.

Frank E. Spencer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Judge.

Appellant was charged with the crime of armed robbery together with a co-defendant, Lige Williams. A trial by the court resulted in a judgment of guilty of both the defendants. The Appellant Lipscomb was sentenced to the Indiana State Prison for a period of ten to 25 years. The appellant requested appointment of pauper counsel to perfect this appeal. His co-defendant did not join in the appeal.

Appellant argues that the evidence is not sufficient to show that he participated in the robbery.

The evidence most favorable to the State of Indiana is as follows:

About 4:00 A.M. on December 14, 1968, the Appellant Lipscomb and Williams drove into the Clark Oil Station located at 501 West Morris Street in Indianapolis. The appellant ordered $2.00 worth of gasoline and paid for it. Both the appellant and Williams purchased cigarettes and each paid for his own cigarettes. They asked the attendant for matches and were told that he had done. At that time the appellant got into his automobile. Williams followed the attendant into the filling station and again asked him for matches. The attendant again stated he had none. At that time Williams placed his right hand in his pants pocket and told the attendant, 'If you don't want to get killed, give me your money.' The attendant gave him approximately $20, which was all of the money he had on his person at that time.

The attendant was able to obtain the license number from the automobile, which belonged to the appellant. With this information the police were able to apprehend both the appellant and Williams some 12 blocks from the station.

At the time of the apprehension the appellant had no money on his person. Williams had $27 in his billfold.

There is no evidence in the record that the appellant was in any position to hear the conversation between the service station attendant and Williams at the time the robbery took place. There is no evidence that any weapon was ever displayed by Williams or any action which would have made it obvious to appellant that Williams was robbing the attendant. There is no evidence that the appellant left the station in any haste or made any attempt to hide his identity. The mere presence of the appellant seated in his car at the station while Williams robbed the attendant inside the station office is insufficient in itself to prove participation. Carey v. State (1924), 194 Ind. 626, 144 N.E. 22; Guetling v. State (1926), 198 Ind. 718, 153 N.E. 765.

The State cites the case of Cotton v. State (1965), 247 Ind. 56, 211 N.E.2d 158, 212 N.E.2d 159, for the proposition that the trier of fact may consider the presence of the appellant in connection with other circumstances in determining his guilt. We agree with this general principle of law. However, in the Cotton case the automobile was seen...