Myers v. State

• Decision Date: 28 August 1968
• Docket Number: No. 867S60,867S60
• Citation: 239 N.E.2d 605,251 Ind. 126
• Parties: Larry Wayne MYERS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 605

239 N.E.2d 605

251 Ind. 126

Larry Wayne MYERS, Appellant, v. STATE of Indiana, Appellee.

No. 867S60.

Supreme Court of Indiana.

Aug. 28, 1968.

Howard S. Grimm, Jr., Edgar A. Grimm, Kendallville, for appellant.

John J. Dillon, Atty. Gen., Dennis J. Dewey, Deputy Atty. Gen., for appellee.

MOTE, Judge.

This is an appeal from the conviction of Appellant of the crime of theft, as charged by the affidavit filed in the trial court. In its verdict, the jury fixed the punishment as imprisonment for not less than one (1) nor more than ten (10) years and further provided that Appellant be disfranchised and rendered incapable of holding any office of trust or profit for a period of one year.

Following pre-sentence investigation and report, the trial judge entered judgment on the jury's finding of guilty, which judgment reads as follows:

'Comes now the defendant in the custody of the sheriff and by counsel as heretofore, and comes now the State of Indiana by Russell E. Schmidt, Prosecuting Attorney in and for the 35th Judicial Circuit. The court now informs the defendant Larry Wayne Myers that the jury in this cause of action returned against him a verdict of guilty as charged in the affidavit, and the said defendant is now asked in open court whether he has any legal cause or reason to show why judgment should not be pronounced against him upon the verdict of the jury; and no legal cause or reason being shown it is now ordered and adjudged by the court that the defendant is twenty (20) years of age and is guilty of theft as charged in the affidavit and that the said defendant for the offense by him committed should be committed to the custody of the Department of Correction and confined in the Indiana State Reformatory for a period of not less than one (1) year nor more than ten (10) years and be disfranchized (sic) and rendered incapable of holding any office of trust or profit for a term of one (1) year, and that he pay and satisfy the costs and charges herein taxed in $_ _. All of which is finally ordered, adjudged, and decreed by the Court. The defendant will now be remanded to the custody of the sheriff for transportation to the Indiana State Reformatory.

The court now orders the first sentence of Paragraph 5 of the pre-sentence investigation report deleted prior to its transmission to the Indiana State Reformatory.'

Appellant asserts as the only error relied upon that the verdict of the jury is not sustained by the evidence, which in effect raises the question of whether the evidence presents a question as to whether the said verdict is erroneous as a matter of law.

It is necessary for us to carefully consider the evidence adduced at the trial. The Appellee admits Appellant's condensed recital of the evidence pertinent to the issues involved is substantially correct, with the exception and addition of those portions of the transcript which are included in the 'Argument' section of its brief. We note no such exceptions or additions and we think it is appropriate now to say that joinder of issues on whether Appellant's condensed recital of the evidence is sufficient by a contention such as herein stated by the Appellee is not satisfactory. This Court should not be burdened with the obligation of determining whether there are any exceptions or additions and henceforth, we shall expect more concise statements by the Appellee (the State of Indiana) in criminal cases than have been appearing in recent briefs.

As we have reviewed the evidence which was presented to the jury, it appears that Appellant regularly dealt in the purchase and sale of livestock on a fairly small basis, attending public sales when he could, making purchases and selling the same as he determined the market to afford him a profit at public sales, etc. The evidence reveals that in an attempt to protect his profit margin, he, as others in the community, including one of the Appellee's witnesses, engaged in what is known in the trade as 'jockeying', which implies that in order for the owner to bid upon the property which is being offered at public sale, he lists the vendor as someone other than himself, oftentimes relatives and friends. This practice is not to be commended, although we do know that such practice and similar practices are widely employed.

Appellant sold six steers on December 29, 1966 at two different auctions. He used two names other than his own in selling the animals and testified that he did so to insure a satisfactory price for the steers.

Ivan Burger, a resident of LaGrange County, testified in substance that he was raising 42 or 43 steers on a farm located about a mile from his home; that on the morning of December 29, 1966, he went from his home to attend the cattle and observed truck tracks going out across the yard from the loading chute near which the cattle were penned and upon counting the cattle, he found that six steers, having an estimated value of between $1,000.00 and $1,200.00, were missing.

The evidence discloses that Burger was called upon to identify his cattle at the farm of Lester Mosher. Burger testified that he was able to identify two steers as being his by the presence of red stains on the sheaths of the steers. The stains were caused by a worming medicine called Phenothiazin, which Burger fed to the six steers. The medicine makes the urine of the steer red and stains its sheath. Mosher corroborated Burger's testimony and said that Burger identified two steers by means of the red stains and that he, Mosher, had purchased them on December 29, 1966 at the Wakarusa Community Sale. The record further shows that these two steers were sold on December 29, 1966 by the Appellant.

Witness Burger identified three more steers as his own at the farm of Walter...