Partlow v. State
| Decision Date | 28 May 1929 |
| Docket Number | 24,898 |
| Citation | 166 N.E. 651,201 Ind. 207 |
| Parties | Partlow v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied June 25, 1929.
1. RECEIVING STOLEN GOODS---Charge of---Necessary Averments.---An indictment or affidavit charging the receiving of stolen goods in violation of the statute (2465 Burns 1926) must charge, in substance, at least, that the goods therein described had been stolen and that they were received by the defendant knowing that they had been stolen p. 210.
2. RECEIVING STOLEN GOODS---Indictment or Affidavit---Language of Statute Sufficient.---An indictment or affidavit charging receiving stolen goods is sufficient if made substantially in the language of the statute. p. 210.
3. RECEIVING STOLEN GOODS---Charge of---Averment that They were Feloniously Received---Equivalent to Averment that Defendant Knew They were Stolen.---In an indictment charging receiving stolen goods (2465 Burns 1926) an averment to the effect that the defendant feloniously received the goods that had been stolen is equivalent to charging that the defendant received such goods knowing, at the time, that they were stolen. p 210.
4. RECEIVING STOLEN GOODS---Charge of---When Not Felonious.---On a charge of receiving stolen goods, if the goods received had not been stolen, the receiving of such goods would not be felonious. p. 210.
5. RECEIVING STOLEN GOODS---Indictment---Held Sufficient.---An indictment for receiving stolen goods (2465 Burns 1926) alleging that certain named persons did unlawfully and feloniously take, steal and carry away an automobile, of the personal goods and chattels of A B, and that defendant unlawfully and feloniously received such automobile knowing that it had been feloniously stolen, was sufficient. p. 210.
6. CRIMINAL LAW---Jury May Weigh the Evidence---Determine Quality of the Evidence.---In the trial of a criminal case before a jury, the jury has the right, and it is within its province, to weigh the evidence and determine the quality of such evidence; in fact, the quality of such evidence is peculiarly within the province of the jury. p. 211.
7. CRIMINAL LAW---Credibility of Witnesses---Weight to be Given by Jury---Weight to be Considered by Jury.---The credibility of the witnesses and the weight to be given to their testimony are proper mat- ters for the consideration of the jury, and where the verdict of the jury has met with the approval of the trial court, it will not be disturbed on appeal. p. 212.
8. CRIMINAL LAW---Insufficiency of Evidence on Appeal---What Necessary to Show.---To present the insufficiency of the evidence to sustain a verdict of conviction, an appellant must show that there was a complete failure of evidence on a material issue. p. 212.
9. CRIMINAL LAW---Accomplices are Competent Witnesses.---Under the provisions of 2267 Burns 1926, accomplices are competent witnesses when they consent to testify. p. 212.
10. CRIMINAL LAW---Accomplices---Conviction on Uncorroborated Testimony.---A defendant may be convicted on the testimony of an accomplice although uncorroborated by other testimony or evidence in the case. p. 212.
11. CRIMINAL LAW---Accomplices' Testimony---Weight and Credibility for Jury.---The weight and credibility of an accomplice's testimony is for the jury, and it may, if it sees fit, accept part and reject part of such testimony. p 213.
12. CRIMINAL LAW---Accomplices Making Affidavits Contrary to Testimony at Trial---Jury's Right to Weigh Testimony.---The fact that, between two trials of a defendant, two of his alleged accomplices made affidavits contrary to and discrediting their testimony at the first trial, but, on the second trial, testified as they did in the first, would not take away from the jury the right to weigh their testimony and determine what weight, if any, should be given to it. p. 213.
13. CRIMINAL LAW---Credibility of Witnesses---Question Exclusively for Jury---Supreme Court may not Dispute.---The credibility of the witnesses is to be determined exclusively by the jury, and the Supreme Court has no right to dispute the decision of the jury on that matter. p. 213.
14. CRIMINAL LAW---Appeal---Evidence Considered---Court must Reject all Evidence Contrary to Verdict.---In determining whether a verdict is sustained by sufficient evidence, an appellate tribunal must accept as true all the evidence and all inferences from facts of which there is evidence which tend to prove what the jury found by its verdict and to reject as lacking credibility all that tends to prove the contrary. p. 213.
15. CRIMINAL LAW---Appeal---Credibility of Witnesses---Appellate Tribunal Bound by Verdict.---After the jury has determined that it will believe witnesses for the State, though they are discredited by their own conduct, and the trial court has sustained the jury by overruling defendant's motion for a new trial, an appellate tribunal will not disturb the finding of the jury as expressed in its verdict. p. 214.
16. CRIMINAL LAW---Insufficiency of Evidence to Sustain Verdict of Guilt---Trial Court must Weigh Conflicting Evidence---In Ruling on Motion for New Trial.---Where defendant has filed a motion for a new trial on the ground that the verdict finding him guilty is not sustained by sufficient evidence, it is the duty of the trial court, who saw the witnesses and heard their testimony, to pass upon the weight of conflicting evidence, and, by his ruling on such motion, approve or disapprove the verdict of the jury. p. 214.
17. APPEAL---Grounds for New Trial---Waiver---Omission from Brief.---Grounds for a new trial which are not presented in appellant's brief are waived. p. 214.
From Marion Criminal Court (49,895); John W. Holtzman, Special Judge.
John L. Partlow was convicted of receiving stolen goods, and he appealed.
Affirmed.
Floyd G. Christian and Ralph H. Waltz, for appellant.
Arthur L. Gilliom, Attorney-General, and George M. Barnard, for the State.
This prosecution was commenced by indictment in which the appellant was charged with unlawfully and feloniously buying, concealing, and aiding in the concealment of stolen property. This is the second appeal in the case.
In the first appeal the judgment of the trial court was affirmed. Partlow v. State (1920), 191 Ind. 660, 128 N.E. 436. By virtue of a writ of coram nobis, issued in an original action in this court, the criminal court of Marion County was directed and authorized to receive and act upon a motion for a new trial by said appellant, John Partlow, which said Partlow was authorized to file in said court. Partlow v. State (1924), 195 Ind. 164, 144 N.E. 661. The motion for a new trial was filed, as authorized, in said Marion Criminal Court, and said court sustained said motion and a new trial was granted, and said Partlow was again tried and convicted and judgment rendered, and, from the judgment so rendered in said second trial, this appeal is taken. Both trials were by jury.
Section 2465 Burns 1926 provides that "whoever buys, receives, conceals or aids in the concealing of anything of value, which has been stolen, . . . knowing the same to have been stolen, . . . shall, if the goods be of the value of $ 25.00 or more, on conviction, suffer the punishment prescribed for grand larceny, and if the goods be of the value of less than $ 25.00 shall suffer the punishment prescribed for petit larceny."
The indictment in this case alleges that Carl Bernauer and Thomas Sterrett, on the 14th day of July, A. D. 1919, at and in the county of Marion, State of Indiana, did then and there unlawfully and feloniously take, steal and carry away one automobile of the value of $ 400, of the personal goods and chattels of one Bert Ashley, and that the appellant, John L. Partlow, did then and there unlawfully and feloniously buy, conceal, and aid in the concealment of said property, he, the said John L. Partlow, then and there well knowing the same to have been feloniously stolen by the said Carl Bernauer and Thomas Sterrett as aforesaid.
There was a motion by the defendant to quash the indictment on the following grounds: (1) The facts stated in the indictment do not constitute a public offense. (2) The indictment does not state the offense with sufficient certainty.
It has been held that an affidavit and information for receiving stolen goods must charge, in substance, that the goods had been stolen and had been received by defendant, knowing that they had been stolen. An indictment or information is sufficient if the charge is made substantially in the language of the statute. An averment in an indictment for receiving stolen goods that defendant feloniously received the goods that had been stolen is equivalent to charging that the defendant received...
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