Myers v. State, 28952

Citation233 Ind. 66,116 N.E.2d 839
Decision Date27 January 1954
Docket NumberNo. 28952,28952
PartiesMYERS v. STATE.
CourtIndiana Supreme Court

Frank E. Martindale, Albert B. Chipman, Plymouth, Floyd O. Jellison, South Bend, of counsel, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Deputy Atty. Gen., for appellee.

DRAPER, Chief Justice.

The appellant was charged with the crime of arson in the second degree. He was tried by a jury which, after debating for twenty hours, returned a verdict of guilty as charged, and recommended leniency.

The attorney general has filed a brief in which he confesses error and admits that the judgment should be reversed. It is nevertheless the duty and responsibility of this court to examine the record and determine whether the law, as applied to the facts in the case, requires reversal of the judgment of conviction. Green v. State, Ind.Sup., 1953, 115 N.E.2d 211.

The appellant asserts that the verdict is not sustained by sufficient evidence. The attorney general concedes that to be the case. We have read and examined the evidence and we agree.

The fire damaged a commercial building in Bourbon, Indiana. The evidence establishes beyond peradventure that the fire was of incendiary origin. There was no direct evidence of appellant's guilt. The state relied, as it had to do, upon circumstantial evidence. The question confronting this court is whether or not there was sufficient evidence of circumstances from which the jury might reasonably have drawn an inference of guilt. McAdams v. State, 1948, 226 Ind. 403, 81 N.E.2d 671; Howard v. State, 1923, 193 Ind. 599, 141 N.E. 341; Scharillo v. State, 1934, 207 Ind. 22, 191 N.E. 76; Mandich v. State, 1946, 224 Ind. 209, 66 N.E.2d 69.

The evidence discloses that the appellant was one of several who had an opportunity to commit the offense. It further discloses that he had conversations with the officials who were investigating the fire. But what he said in the course of those conversations, although not inconsistent with guilt, was consistent with innocence, and we have held that proof of a nonexclusive opportunity to commit a crime is not enough to support a conviction. Christen v. State. 1950, 228 Ind. 30, 89 N.E.2d 445.

It is possible that the appellant did, in fact, prepare the stage and set the fire. But we think the jury's misgivings, as indicated by their recommendation of leniency, were well founded. Certainly it cannot be said that the circumstances proved pointed surely and unerringly in...

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16 cases
  • Stephenson v. State
    • United States
    • Supreme Court of Indiana
    • April 26, 2007
    ...a party from contesting its own finding, a concession as to a conclusion of law is not binding on this Court. See Myers v. State, 233 Ind. 66, 67, 116 N.E.2d 839, 839 (1954); Green v. State, 232 Ind. 596, 597, 115 N.E.2d 211, 212 (1953). Whether the issue of the belt's use was available as ......
  • Shipman v. State
    • United States
    • Supreme Court of Indiana
    • June 26, 1962
    ...guilt of appellants beyond a reasonable doubt, may be drawn. Todd v. State (1951), 230 Ind. 85, 90, 101 N.E.2d 922; Myers v. State, 1954, 233 Ind. 66, 67, 116 N.E.2d 839. 'The true test of circumstantial evidence is whether 'in the order of natural causes and effects, the facts proved can b......
  • Briscoe v. State, 1-1077A238
    • United States
    • Court of Appeals of Indiana
    • May 2, 1979
    ...that Briscoe had a nonexclusive opportunity to commit the crime but that it is not enough to support a conviction. Myers v. State, (1954) 233 Ind. 66, 116 N.E.2d 839. Beyond this, the State's evidence, at best, warrants only a suspicion and that also is not enough. Baker, supra. We agree wi......
  • Nash v. State, 2-581A181
    • United States
    • Court of Appeals of Indiana
    • April 7, 1982
    ...two items. It is nevertheless the duty of this court to examine the record and decide the law as applied to the facts. Myers v. State, (1954) 233 Ind. 66, 116 N.E.2d 839; Green v. State, (1953) 232 Ind. 596, 115 N.E.2d Because Nash has not favored us with a transcript of the suppression hea......
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