Medsker v. State

• Decision Date: 16 December 1946
• Docket Number: 28202.
• Citation: 70 N.E.2d 182,224 Ind. 587
• Parties: MEDSKER v. STATE.
• Court: Indiana Supreme Court

70 N.E.2d 182

224 Ind. 587

MEDSKER v. STATE.

No. 28202.

Supreme Court of Indiana

December 16, 1946

Appeal from Elkhart Superior Court; William E. Wider Judge.

Carl W. Broo and Floyd Cook, both of Kokomo, for appellant.

James A. Emmert, Atty. Gen., Frank E. Coughlin, 1st Asst. Atty Gen., and George W. Hadley, Deputy Atty. Gen., for appellee.

GILKISON Chief Justice.

In the trial court defendant was charged by indictment in two counts, (1) automobile banditry and being a professional criminal and (2) automobile banditry, as defined in § 10-4710, Burns' 1942 Replacement. He entered a plea of not guilty, was tried by jury and found guilty of automobile banditry only. He was then sentenced to imprisonment for a determinate period of twelve years. Thereafter his motion for new trial, containing twenty-six specifications, was overruled, and this appeal was taken.

The only assignment of error relied upon is the alleged error in overruling the motion for new trial.

In this appeal there is no controversy respecting the commission of the offense. The only controversy is (1) concerning the admissibility of the evidence by which the identity of the defendant as one of the persons committing the offense was established, and (2) that there is no evidence that the defendant had at the time on or near the premises where the felony was committed, an automobile by the use of which he attempted to escape.

The evidence shows that about 4 o'clock in the morning August 23, 1945, Officer Bowers of the Elkhart City Police, while on his regular shift, noticed a man at the rear door of the Firestone Stores in the City of Elkhart. He then noticed the glass broken in the store door, and observed another man standing near the corner of the building. The men ran and he ran after them. They disappeared down the alley, but he observed their size, their clothing ornaments worn by one, glasses worn by the other, and that they were bareheaded. He found four automobile tires lying in the alley nearby. An hour or more later he saw the defendant and one Knotts at the police station. They had been apprehended by other members of the police force, while they were driving out of Elkhart together in an automobile, after officer Bowers had the experiences above noted and had given an alarm. Officer Bowers was then asked by the prosecutor to state whether or not in his opinion the man whom he saw at the police department, and whom he later learned to be Charles W. Knotts, was the same person he saw emerging from the door of the Firestone Store. This question was objected to. The objection was overruled, and the answer was 'yes'. The causes for objection urged here, are (1) 'It is not a proper identification of defendant. (2) Conspiracy must first be shown to exist before the accounts of the co-conspirator are admissible, and then only such accounts as are done in furtherance of the conspiracy.'

The witness was then asked whether in his opinion the man whom he saw at the police department and whom he learned was Donald E. Medsker (the appellant) was the same person he saw standing in the alleyway at the south end of the Firestone stores. To this question defendant objected for reasons then stated. The objection was overruled, and the answer was 'yes'. The reasons for the objection urged here are 'the conditions under which the witness was basing his identification were not the same'. And 'It is an inconclusive way of identifying the defendant.'

The witness, having seen each of the two persons at and near the west rear door of the Firestone stores at about 4 o'clock in the morning, when they ran from him, and an hour and a half later, after he had alarmed the city police, seeing the defendant and the man Knotts at police headquarters, was certainly competent to give his opinion as to whether they were the same persons he had seen at and near the store door.

'Identification is almost always a matter of opinion or belief' concerning a fact. 42 C.J.S., Identification, at page 375. And 'A conviction may be sustained, although a witness declines to swear positively and testifies merely that he believes accused is the person whom he saw commit the crime.' 23 C.J.S., Criminal Law, § 920, page 192; Commonwealth v. Cunningham, 1870, 104 Mass. 545, 547. State v. Franke, 1901, 159 Mo. 535, 542, 60 S.W. 1053. The question of identity is one of fact and not of law. Therefore all evidence bearing upon the question must be submitted to the jury, and it is for the jury to determine whether it is satisfactory and trustworthy. Craig v. State, 1908, 171 Ind. 317, 323, 86 N.E. 397; Hendricks v. State, 1866, 26 Ind. 493, 494, 495; Harbor v. Morgan, 1853, 4 Ind. 158, 159; 9 Am.Jur., Burglary, § 70, p. 274. The evidence was pertinent to the issue of identification and was properly admitted. Its weight was for the jury to determine.

Over appellant's objection police officer Wayne Silver, was permitted to testify that while Knotts was sitting in the police station with appellant about an hour and a half after officer Bowers had chased two men from the Firestone Stores, he 'observed Knotts wipe his hands in his handkerchief and put it back in his hip pocket', and also that later he and another officer went in and got the handkerchief. Like objections were made to similar evidence by officer Rudolph Terlep. Over appellant's objection officer William F. Roth was permitted to testify that he took a towel and wiped talcum 'or whatever it is, out of the...