Miller v. State

• Citation: 250 Ind. 338,236 N.E.2d 173
• Decision Date: 29 April 1968
• Docket Number: No. 31146,31146
• Parties: Charles E. MILLER, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 173

236 N.E.2d 173

250 Ind. 338

Charles E. MILLER, Appellant, v. STATE of Indiana, Appellee.

No. 31146.

Supreme Court of Indiana.

April 29, 1968.

Patrick J. Hadler, Indianapolis, Robert D. St. Clair, Martinsville, for appellant.

John J. Dillon, Atty. Gen., Rex Phillip Killiam, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

Appellant Charles Miller was convicted of the crime of theft of stolen property pursuant to Ind.Ann.Stat. § 10--3030 (Supp.1967) subsection (1)(d) and (2)(a), (b) or (c), (infra) in the Morgan Superior Court, and appeals from the overruling of his motion for new trial.

The affidavit upon which appellant was tried, omitting caption and signatures reads:

H. Fred Neal being duly sworn, upon oath says, that in and at the County of Morgan, in the State of Indiana, on or about the 24th day of September, 1965 that one Charles E. Miller did then and there unlawfully commit the crime of theft in that he obtained and exerted unauthorized control over certain property, to wit: console, right bucket seat, and left bucket seat removed from a 1962 Chevrolet Super Sport, blanket, '64 Atlas', a towel, pair plyers, ignition switch, two window slides, two box C-Rations, 1 quart of Quaker State Oil, 12 oz. Can Indiana Heal brake fluid, 1 army Flashlight, set front and rear floor mats, and a pair of glasses case, all property belong (sic) to Keith J. Thompson, and of the value of $300.00 and having heretofor been unlawfully, feloniously removed, taken and stolen from the said Keith J. Thompson, the said Charles E. Miller well knowing said property to have heretofor been feloniously and unlawfully taken, removed, and stolen, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

The above affidavit is so phrased as to attempt to charge appellant with violating Ind.Ann.Stat. § 10--3030 (Supp.1967) which reads as follows in pertinent part:

'10--3030. Theft in General.--A person commits theft when he (1) knowingly:

(d) obtains control over stolen property knowing the property to have been stolen by another, wherever the theft may have occurred; * * * and

(2) either:

(a) intends to deprive the owner permanently of the use or benefit of the property; or

(b) uses, conceals or abandons the property in such manner as knowingly to deprive the owner permanently of such use or benefit; or

(c) uses, conceals or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.'

Reviewing the evidence most favorable to the appellee State of Indiana, we find that on September 21, 1965, a certain 1962 Chevrolet automobile belonging to one Keith Thompson was stolen in Indianapolis. On the afternoon of September 24, 1965, the appellant, Charles Miller, was operating a 1958 Chevrolet automobile in Morgan County. Appellant was a part-time auto mechanic residing in Indianapolis and was returning to the city after feeding his horse which he kept on a Morgan County farm. The trunk of the automobile appellant was driving was not fully closed and apparently contained automobile equipment, notably bucket seats from another car.

As appellant proceeded along his route, he executed a right hand turn from Hwy. 67 onto a county road known as Hadley Road. However, upon observing that a vehicle safety check station had been set up by a State Policeman on Hadley Road, appellant made a virtual U-turn in both lanes of Hadley Road, and proceeded back out onto Hay. 67. Observing this deviation, the State Policeman, Trooper Chester Inlow, pursued appellant and stopped him.

Upon Inlow's request, appellant produced his driver's license. Appellant told the officer that the automobile belonged to a man named Erwin, who lived in Indianapolis and that he, appellant, had been employed by Erwin to install a clutch in the car. Appellant also told the officer that he had completed the clutch installation, but at trial he admitted that that statement was not true, that he had merely adjusted the clutch but intended to charge Erwin for installation of a new clutch. The State produced testimony by a deputy sheriff, who was a former auto mechanic, to the effect that in his opinion the clutch on the auto had not been adjusted near the time of appellant's arrest since the grease and grime caked on certain adjustment bolts had not been disturbed by any of the necessary tools.

Appellant was unable to produce a motor vehicle registration form for the auto he was driving, and for that violation Trooper Inlow made out a notice to appear in Justice of the Peace Court in Mooresville, and impounded the auto in Mooresville pending proof of ownership.

Trooper Inlow asked appellant about certain loose articles of automobile equipment that were in the auto and appellant told him they belonged to a friend. He never named the friend and the officer apparently never asked that he be more specific.

After impounding the automobile, Trooper Inlow, along with other law enforcement officers, inventoried the loose auto equipment, and investigated the ownership of the auto. The investigation disclosed that the auto belonged to one Lowell Erwin of Indianapolis, and that the license plates on the auto were also in Erwin's name but were registered to a different automobile. There was no report that the vehicle appellant was driving had been stolen. Erwin was not produced at trial, and apparently could not be found by either appellant or appellee.

The day after appellant was stopped by Trooper Inlow, Keith Thompson came to Mooresville where the vehicle and its contents were impounded and identified various loose items in the auto appellant had been driving as equipment from his stolen 1962 Chevrolet. Thompson identified those goods again at appellant's trial.

Sometime after Thompson identified the loose auto equipment at Mooresville, the 1958 Chevrolet was stolen from the location in Mooresville where it had been impounded and had not been recovered by the time of trial.

Apparently, as a result of a misunderstanding of the testimony surrounding the theft of the automobile, the Attorney General contends in his brief that appellant was driving a stolen car when Trooper Inlow arrested him. But that is not the case.

On the basis of the foregoing evidence, the appellant was found guilty as charged, and was sentenced to one (1) to five (5) years in prison and was fined $300 and costs.

One of the errors alleged by appellant in his motion for new trial is that the evidence is insufficient to support the verdict of guilty. Under Ind.Ann.Stat. § 10--3030, supra, the elements of the crime appellant is charged with are:

(1) knowingly obtaining control,

(2) over stolen property,

(3) knowing the property to have been stolen by another

(4) either with intent to deprive the owner permanently of the use and benefit of the property, or using, concealing or abandoning the property in such manner as knowingly to deprive the owner, or as probably will deprive the owner permanently of such use or benefit.

The central issue in appellant's challenge to the sufficiency of the evidence is whether the State produced sufficient evidence to justify the jury in finding that appellant knew the property in question was stolen.

'The question of the existence of such knowledge is one of fact for the jury, * * * and it is sufficient if the facts and circumstances surrounding a defendant's receiving and concealing of the property were such that the jury could reasonably infer and conclude therefrom that he knew it was stolen. * * * Guilty knowledge that the property received is stolen cannot rest on mere supposition * * * and, where the state relies wholly on circumstantial evidence to show such guilty knowledge, the circumstances relied upon must point clearly and conclusively to guilt and exclude every reasonable hypothesis of innocence, * * * sufficiently to convince the jury beyond a reasonable doubt that the accused knew the property was stolen.' Wertheimer and Goldberg v. State (1929), 201 Ind. 572, 580, 169 N.E. 40, 43, 68 A.L.R. 178. (Citations omitted.)

We have recently reiterated that the State may resort to circumstantial evidence to prove essential elements of the crime charged; but in order for that...