Partlow v. State
| Decision Date | 28 May 1929 |
| Docket Number | No. 24898.,24898. |
| Parties | PARTLOW v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Marion Criminal Court; John W. Holtzman, Special Judge.
John L. Partlow was convicted of receiving stolen goods, and he appeals. Affirmed.Floyd G. Christian, of Noblesville, for appellant.
Arthur L. Gilliom, Atty. Gen. (George M. Barnard, of Indianapolis, of counsel), 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, 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, 195 Ind. 164, 144 N. E. 661, 30 A. L. R. 1414. 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.
[1][2][3][4][5] 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 the goods which at the time of the receiving were still under the larcenous taking, and the defendant knew it.
If the goods when received were not the subject of larceny, the receiving would not have been felonious. Semon v. State, 158 Ind. 55, 62 N. E. 625;Blum v. State, 196 Ind. 675, 148 N. E. 193. The court did not err in overruling the motion to quash the indictment.
[6] The appellant urges that the verdict is not sustained by sufficient evidence. The appellant alleges that he was convicted entirely upon the testimony of the witnesses, Bernauer and Sterrett, who claim to have stolen the automobile and sold the storage ticket or tag therefor to appellant.
The appellant alleges that the testimony of these two witnesses is wholly unreliable; that this appellant was convicted of this offense in the first trial upon the testimony of these two witnesses; that the judgment was affirmed by this court; that the appellant secured a new trial by virtue of a writ of coram nobis; that the appellant's petition for said writ was supported by the affidavits of these two witnesses, in which they testified that the evidence which they gave in the first trial against this appellant was untrue; that this appellant was tried again and these same witnesses testified in the second trial that the affidavits which they had filed discrediting their testimony in the first trial for the purpose of securing a new trial by virtue of a writ of coram nobis, for this appellant, was untrue; that they testified again to the same facts which they had testified to in the original trial; that appellant was convicted upon such testimony.
[7] The appellant alleges that the testimony of these witnesses is wholly unreliable because they had been discredited, and seeks to have their testimony withdrawn from the jury, but it must be borne in mind that in determining the credibility of witnesses in a case of this kind the jury have the right, and it is within the province of such jury exclusively, to weigh the evidence and determine the quality of such evidence. In a criminal prosecution the quality of the evidence is peculiarly for the trial court and for the jury. Parsons v. State, 191 Ind. 194, 131 N. E. 381.
[8] The credibility of the witnesses and the weight to be given to the testimony of each witness were proper matters for the consideration of the jury, and, where their verdict has met the approval of the trial court, it will not be disturbed in this court. See Skaggs v. State, 108 Ind. 53, 8 N. E. 695, and cases there cited.
[9] To present error on the ground of insufficiency of evidence, one must show that...
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