Metz v. State, 30293

• Citation: 244 Ind. 536,194 N.E.2d 617
• Decision Date: 11 December 1963
• Docket Number: No. 30293,30293
• Parties: William METZ, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 617

194 N.E.2d 617

244 Ind. 536

William METZ, Appellant, v. STATE of Indiana, Appellee.

No. 30293.

Supreme Court of Indiana.

Dec. 11, 1963.

Bob Good, Shelbyville, Charles Z. Bond, Ft. Wayne, for appellant.

Edwin K. Steers, Atty. Gen., Frederick J. Graf, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

The appellant, William Metz, was charged by affidavit in four counts as follows:

Count I--Second degree burglary.

Count II--Burglary with tools.

Count III--Possession of burglary tools by convict.

Count IV--Auto banditry.

The appellant pleaded not guilty to each of the counts and after trial by court the appellant was found guilty of Counts I, II and IV and not guilty on Count III (possession of burglary tools by convict).

The State concedes error on appeal as to Count II (burglary with tools).

We thus have for consideration on appeal the charges of Count I (second degree burglary) and Count IV (auto banditry).

The appellant filed a motion for a new trial, which was overruled. The sole remaining alleged error for consideration is that the finding of the court is not sustained by sufficient evidence. Under this contention appellant urges that the defendant was not identified and secondly, that there was a failure of proof of ownership of the property alleged to have been taken.

A consideration of these points requires a brief recital of the evidence.

On appeal, in determining the sufficiency of evidence, we may consider only the evidence most favorable to the sustaining of the trial court's finding below. In other words, in this case, the evidence most favorable to the State. Tait v. State (1963), Ind., 188 N.E. 537.

At the same time, we may not weigh conflicting evidence nor determine the credibility of witnesses. Myers v. State (1960), 240 Ind. 641, 168 N.E.2d 220; Denson v. State (1960), 240 Ind. 324, 163 N.E.2d 749.

On the issue of identification of the appellant, Oscar Baldwin, the manager of Leo C. Ward, Inc., d/b/a the Frances Shop where the alleged burglary took place, testified that he went to the shop on Sunday afternoon to do some work; that he heard some noise upstairs in the building, but thought nothing about it because he assumed that someone was moving some stock around. Hearing the noise more frequently, he went upstairs and as he approached the top of the stairs he shouted: 'Who is up there?' and at that time the door opened from the women's lounge where the lights were on and a man burst out the door and made a turn into the beauty parlor on that floor. The witness then stated he realized the man could not get out in that area. He further stated he went to the back of the building and unlocked the door for some reason and then went back to his desk where he called the police. He then ran out the back door and he saw the man running at the end of the alley. He shouted to a delivery man in the vicinity: 'Stop that man, he's a burglar!' At that time the alleged burgler dropped his tools and took a right turn towards a parking lot. Baldwin says that he picked up a crowbar dropped by the man and started chasing him and threw the crowbar at him. Then the police came and he got in the car with them. Momentarily, he said, at that point he lost sight of the defendant, but the police caught sight of him promptly when they found him walking 'very nonchalantly' down the sidewalk. This witness states that the appellant, at the time he was arrested, was short of breath and perspiring heavily, his clothes were damp and his coat was sweaty. In his pockets they found his gloves and his glasses. The gloves were wet. In his billfold they found $52.00. There were also eighteen one dollar bills and an undetermined amount of change wadded up in his pocket. The one dollar bills were damp.

The evidence further shows that the back door of the building had 'pry marks' thereon which fitted the tools found with the safe upstairs. The safe showed evidence of having been tampered with and there was debris on the floor. The evidence further shows that appellant's car was found parked in a lot near the Frances Shop, and the man attempting to escape was running in the direction of the parking lot when he threw down the crowbar and brief case...