Mattingly v. State

• Decision Date: 12 November 1957
• Docket Number: No. 29492,29492
• Parties: Lawrence MATTINGLY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 650

145 N.E.2d 650

237 Ind. 326

Lawrence MATTINGLY, Appellant, v. STATE of Indiana, Appellee.

No. 29492.

Supreme Court of Indiana.

Nov. 12, 1957.

DeRoo Weber, Mt. Vernon, Carrol F. Dillon, Evansville, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Merl M. Wall, Deputies Atty. Gen., for appellee.

PER CURIAM.

Appellant was charged by affidavit with conspiring with his brother Wilson Mattingly and one William Ausley under Acts 1905, ch. 169, § 641, p. 584, being § 10-1101, Burns' 1956 Replacement, to commit a felony, to-wit: 'to break and enter into Reed's Barbershop in Mount Vernon, Indiana, * * * to take, steal and carry away the goods, chattels and personal property of Jesse Reed * * *.'

He was separately tried by the court, without the intervention of a jury, found guilty as charged and sentenced to the Indiana Reformatory.

Two questions are presented for our consideration.

First: Appellee asserts that the evidence is not in the record because the only evidence at the trial of appellant was by stipulation of the parties that 'the evidence in the trial of Wilson Mattingly should be taken and considered to be the evidence in the trial of Lawrence Mattingly * * *.', and such evidence was neither read into the record in the trial court, nor was a transcript of the stipulated evidence introduced into evidence at the trial of appellant herein.

Appellant also attempts to raise substantially the same question. However, any omission or error which might have been made in the introduction of the stipulated evidence was waived by appellant because of his failure to raise the question in the trial court where the error, if any, might have been corrected.

There appears in the transcript of the record filed herein a Bill of Exceptions containing not only the stipulation hereinabove referred to, in full, but also a transcript of all the evidence given in the trial of State of Indiana v. Wilson Mattingly, duly certified to by the official court reporter. ¹

We think this is sufficient to bring the evidence before us, particularly in view of the fact that the record discloses that the trial court, the defendant-appellant, and the prosecuting attorney considered the evidence in the trial of Wilson Mattingly as the evidence in the trial of appellant herein. Both parties, having adopted this procedure without objection of the trial court, are bound by it on appeal here. State ex rel. Cline v. Schricker, 1950, 228 Ind. 41, 45, 88 N.E.2d 746, 89 N.E.2d 547; Pokraka v. Lummus Co., 1952, 230 Ind. 523, 527, 104 N.E.2d 669. Cf. State ex rel. Christopher v. Amrine, Ohio App.1950, 94 N.E.2d 204; Landis, for Use of Talley v. New Amsterdam Cas. Co., 1952, 347 Ill.App. 560, 107 N.E.2d 187, 191; McCann v. McCann, 1912, 20 Cal.App. 564, 129 P. 966; 967; Gormley v. United States, 4 Cir., 1948, 167 F.2d 454, 458.

Second: Appellant asserts that the decision of the trial court is not sustained by sufficient evidence.

To sustain a conviction in this case the State was required to prove, beyond a reasonable doubt, that appellant knowingly and unlawfully agreed and united with one or both of the other persons named in the affidavit to break into and enter Reed's Barber Shop in Mount Vernon, Indiana, with the intent to steal the personal property of Jesse Reed.

To determine whether the State has discharged this burden of proof we will examine only that evidence most favorable to the appellee. Such an examination discloses that the chief witness for the State was William Ausley, one of those charged in the affidavit with appellant, who testified in pertinent parts, on direct examination, that he knew appellant and Wilson Mattingly and was with them on the night of May 8-9, 1956; that he first saw them 'Around six o'clock' and got into appellant's car with them; that they stayed around town 'until pretty late' and then drove out to Bufkin where he and Wilson broke into a store and took some money, cigars and cigarettes. This witness further testified that appellant was not with them when they broke into the store, and that the three of them had not talked about it before they reached the store; that appellant drove them to Bufkin but nothing was said; that after they stopped near the store they 'talked about the store being there and nobody was living in the store,' and he asked where the closest people lived, and 'he said across the road and back down the road was a house'; that all three of them were talking there, but he and Wilson were the ones who broke into the store; ² and that after this they returned to Mount Vernon where they met some girls whom they took to Evansville.

After taking the girls to Evansville and drinking a fifth of whisky they returned to Mount Vernon. As to what they did then, this witness testified as follows:

'A. We came into town, and we were going home. I guess we were pretty well excited, and feeling pretty good from the whisky, and we were talking about robbing something, and we discussed robbing the bank for awhile, and after we got on Second Street Wilson said he knew this boy in he barbershop, and they left money in there, and he said 'do you want to get it', and we said we might as well.

'Q. All three were talking it over? A. Me and Wilson were talking it over.

'Q. And you agreed to go there? A. I don't know, after Lawrence stopped his car at the V.F.W. he said 'what place are you going to rob' and I said, 'first place we come to.'

'Q. But you had already talked about the barbershop before that hadn't you? A. Wilson and I had.

'Q. And Lawrence said 'what place are you going into' and you said 'the first damn place we come to', did you say that? A. That is about what I said.'

On cross-examination this witness testified:

'X.Q. Did you give a reason for stopping the car down there at Second and Walnut? A. We were talking about entering the place.

'X.Q. What place? A. Any place.

'X.Q. Who did you have that conversation with? A. I guess me and Wilson was talking among ourselves, and the radio was on--Lawrence might have heard it, I don't know whether he did or not.

* * *

* * *

'X.Q. And when you stopped down here on Second Street, what was the reason for that? A. We were talking about going in any place, it didn't matter too much.

'X.Q. You and Wilson did that? A. Yes, sir, we were talking.

'X.Q. Were you sitting in the front seat or back seat? A. All three sitting in the front seat.

'X.Q. And the radio was going full blast? A. No, sir, it was on.

'X.Q. You said you didn't know whether Lawrence heard you or not, would that be on account of the radio? A. It might be, and it might have been because he was occupied by thinking of something else.

'X.Q. Was he drunk? A. I am not qualified to answer that.

'X.Q. Were you intoxicated? A. I had been drinking pretty heavy, sir.

'X.Q. Was Wilson Mattingly intoxicated? A. I can't answer that for you, sir, he was drinking.

'X.Q. Did you stagger up the street, you and Wilson? A. Yes, sir.

'X.Q. Now according to your statement, I believe you said you were going to get the first one you came to, is that right? A. We said we were going to rob the first place we came to.

'X.Q. Did Lawrence Mattingly ask you where you were going when you got out of the car? A. He yelled something to that effect.

'X.Q. What did he say? A. 'What place are you going into?'

'X.Q. None of the place of business were open at that time of morning, were they? A. No, sir.

'X.Q. From that statement there it appears he didn't know where you guys were going, is that right? A. We had talked about the barbershop.

'X.Q. You mean you and Wilson had? A. Yes.

'X.Q. He didn't know just where you were going? A. No, sir, we didn't, at least I didn't.

'X.Q. Did you know where you were going when you got out of the car? A. No, Wilson came back there and started to open the window up and I was helping. When I got to that window I made up my mind.

'X.Q. When you got out of the car and went across Walnut Street you didn't know which one you were going to rob before you got up there? A. No, sir, we had talked about the barbershop, and just any place.

* * *

* * *

'X.Q. Why was the car stopped at Second and Walnut, do you know? A. Lawrence pulled it up there and stopped it.

'X.Q. Why did he stop it, was you boys going to the toilet? A. He just stopped the car, and we were talking about going out to a place.

'X.Q. Which place? A. Any place, sir, we were coming back from Evansville----

'By Mr. Weber: Just answer the question.

'A. We were going into the Goodyear tire, sir. My intentions were to include getting into the barbershop, Wilson said he knew the boy in Reed's Barbershop.

'X.Q. You were thinking about getting into the Goodyer Tire Shop, and what was Wilson going to do? A. He was going to get that change in the barbershop.

* * *

* * *

'A. When we got out of the car he asked us where we were going.

'X.Q. What did you tell him? A. I told him, 'the first place we came to.'

'X.Q. That was the Citation T.V., wasn't it? A. I don't believe I said anything about going into the Citation T.V.

'X.Q. You said you got out of the car, and Wilson took your hand, and you two staggered up the street, and the first place you came to would be the Citation T.V., and he asked you where you were going, and you said 'the first place we come to'? A. That is right.'

This witness further testified that he 'imagined' that he and Wilson talked about breaking into Reed's Barber Shop on the way back from Evansville.

Kenneth Terrell, a police officer of the City of Mount Vernon, testified as a witness for the State as follows:

That while on duty the night of May 9th, 1956, at about three o'clock in the morning he was standing at the corner of Second and Walnut Streets in the City of Mount Vernon, Indiana, when he saw Wilson Mattingly and William Ausley 'walking up Second Street toward Main'; he watched them go to the rear of Reed's Barber Shop; that he then walked 'back through the alley as a police car...