McMinoway v. State

• Decision Date: 06 June 1972
• Docket Number: No. 172A46,172A46
• Citation: 283 N.E.2d 553,31 Ind.Dec. 209
• Parties: Samuel S. McMINOWAY and Fred L. Stout, Jr., Defendants-Appellants, v. STATE of Indiana, Plaintiff-appellee.
• Court: Indiana Appellate Court

Page 553

283 N.E.2d 553

Samuel S. McMINOWAY and Fred L. Stout, Jr., Defendants-Appellants, v. STATE of Indiana, Plaintiff-appellee.

No. 172A46.

Court of Appeals of Indiana, First District.

June 6, 1972.

Rehearing Denied Aug. 4, 1972.

James D. Williams, Corydon, for defendants-appellants.

Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for plaintiff-appellee.

ROBERTSON, Presiding Judge.

The defendants were convicted of second degree burglary after a trial by jury and sentenced accordingly.

Their motion to correct errors in summarized by means of their brief to present four issues for determination.

The first issue alleges insufficient evidence to positively identify the defendants as the same persons observed at the scene of the crime. A summary of the evidence most favorable to the state shows that Indiana State Police Trooper Burch noticed an automobile parked off of the highway near the entrance to the Corydon Country Club at about 4:3 A.M. After determining the make, color and license number of the automobile, he drove across a bridge and up a hill to the club house. There he saw two men, one with a green sport shirt, the other with a two-tone blue striped shirt, standing in front of the club house. The two men fled into the foggy night. Trooper Burch returned to the highway, called for help, and drove to the club house to determine if it had been burgled. Upon seeing a door standing open he returned to the highway where the suspicioned car was gone. Less than 30 minutes later that car, and the two men matching officer Burch's description, were stopped while exiting from I-64 in New Albany. Also, taken from the defendants were the items which comprised States' Exhibits 1, 2, and 3.

Officer Burch testified:

'Q. And there is no question in your mind that these two men could have been the men standing and running from the county club?

A. No question in my mind but what Mr. McMinoway was the man standing away from the club, and Mr. Stout the man that ran.'

In addition to matching the description of the car and the defendants, both men were observed as being wet from the knees down. In order to get to their car it would have been necessary to wade a creek approximately two feet deep.

Identification as having been seen in the vicinity of a burglary and fleeing upon being interrupted by the police is evidence of guilt. Thomas v. State (1970), Ind., 261 N.E.2d 224.

This court will not weigh the evidence nor resolve the questions of credibility, but will look to the evidence most favorable to the state and the reasonable inferences therefrom which support the verdict of the trial court or jury. Washington v. State (1971), Ind., 271 N.E.2d 888; Davis v. State (1971), Ind., 271 N.E.2d 893; Grimm v. State (1970) Ind., 258 N.E.2d 407; Sharp v. State (1970), Ind., 260 N.E.2d 593; Smith v. State (1970), Ind., 260 N.E.2d 558; and Langley v. State (1968), 250 Ind. 29, 232 N.E.2d 611.

We are of the opinion there was sufficient evidence for the jury to find as they did.

The second issue presented consists of a gap in the chain of evidence. After being arrested by the New Albany police, the defendants' possessions were taken from them and placed in three paper bags. The bags were locked in the detective's office then subsequently given to Trooper Burch, who in turn had them placed in a safe in the Harrison County Jail until the time of trial. The questioned situation arose when certain New Albany officers locked the evidence in an office and it was taken out by other officers.

'. . . we feel that the location of the bag during the days in question has been sufficiently accounted for. A mere possibility that the evidence could have been tampered with will not make it totally objectionable. Therefore the verdict will not be reversed on the basis of the admissibility of these exhibits.'

Kolb v. State, Ind., 282 N.E.2d 541 decided May 15, 1972.

See also:

Guthrie v. State (1970), Ind., 260 N.E.2d 579.

A secondary question raised in this allegation involves a lady's wrist watch with a broken clasp. The watch was in the country club cash register and among the items taken from the defendants by the New Albany police. The club manager made a positive identification of the watch. The defendants argue that there is no proof that this watch belonged to or was owned by the Corydon Country Club. We are of the opinion that this argument is also without merit. Burglary is an offense against the possession of property and not necessarily against ownership thereof. Bradley v. State (1964), 244 Ind. 630, 195 N.E.2d 347. In addition to the watch, there were other items found on the defendants which sufficiently connected them to the burglary, such as a bottle of QT suntan lotion, a dollar bill torn in two parts, 'Joseph Barr' dollars, rolls of change and five dollar bills with red marks on them. Unexplained exclusive possession of recently stolen property is evidence of guilt. Bradley v. State, supra; Green v. State (1960), 241 Ind. 96, 168 N.E.2d 345, and authorities cited therein.

The third issue involves a failure of the judge to enter judgment upon receipt of the jury's verdict as required by law. The defendants rely upon the following statutes:

'When judgment...