Payne v. State

• Decision Date: 29 February 1924
• Docket Number: No. 24291.,24291.
• Parties: PAYNE v. STATE.
• Court: Indiana Supreme Court

194 Ind. 365

142 N.E. 651

PAYNE

v.STATE.

No. 24291.

Supreme Court of Indiana.

Feb. 29, 1924.

Appeal from Circuit Court, Delaware County; Leonidus A. Guthrie, Special Judge.

Cecil Payne was convicted of grand larceny, and he appeals. Affirmed.

Thomas V. Miller and Raymond C. Cray, both of Muncie, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Deputy Atty. Gen., for the State.

EWBANK, C. J.

[1] Appellant was convicted of grand larceny, the indictment having charged him and three others, jointly, with the crime of robbery, as defined by Acts 1921, c. 59, p. 138 (section 2246, Burns' Supp. 1921). His motion for a new trial for the alleged reason that the verdict is not sustained by sufficient evidence and is contrary to law was overruled, and he excepted, and has assigned that ruling as error. There was evidence which, if believed, might be accepted as proof that appellant had a good reputation for morality, honesty, and integrity; that two or three hours before the money was taken appellant was “staggering drunk”; that afterward he drank more than a pint of intoxicating liquor; and that then, upon a suggestion by one of his companions that they “go get some whisky,” he borrowed an automobile and went with them for that purpose; that he was so drunk he did not know what happened when his companions “held up” a merchant and took his money, and that the money found in defendant's possession was the proceeds of a check which he received for working on the road. But there was also evidence on which the state relies to the following effect: That appellant was 29 years old, and lived with his mother and brothers and sisters on a farm three miles south of Fairmount, in Grant county, Ind.; that he had not been home since the day before, and at about 6 o'clock on the evening of Monday, January 23, 1922, he was in a poolroom at Fairmount talking to his codefendant, McKinley, when McKinley said to another codefendant, “Let's go out and get a little bit of easy money this evening,” and told appellant to get a car; that appellant went out and came back with a car, and with his three codefendants in the car drove it to Wheeling in Delaware county, Ind., some 12 miles southeast of Fairmount; that the weather was cold, and there was snow on the ground, and it had been sleeting all the evening, and the roads were “slick”; that appellant drove a quarter of a mile past the village of Wheeling, where all of his companions got out, and two of them cut the telephone wires, while appellant drove farther down the road and turned the car around, and then picked them up and drove with them to the store of a Mr. Hoover, in Wheeling; that McKinley there asked another codefendant to go inside, as he was afraid Mr. Hoover might know him, and while the other two went into the store appellant, accompanied by McKinley, drove the car about a square down the road and stopped it; that one of the two who went into the store put a gun against Mr. Hoover's side and said, “Hands up!” while the other took $80 that belonged to Mr. Hoover out of the till and took Mr. Hoover's pocketbook and watch; that this occurred at 7 o'clock in the evening; that while the store was being robbed two men walked past where the car was standing, and appellant drove it about half a mile farther west and stopped; that the two men who entered the store hurried down the road and...