Phillips v. State, 1271S381
| Decision Date | 07 May 1973 |
| Docket Number | No. 1271S381,1271S381 |
| Parties | Paul PHILLIPS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Marlin K. McDaniel, Richmond, Albert W. Ewbank, Indianapolis, for appellant.
Theo. L. Sendak, Atty.Gen., Robert F. Colker, Deputy Atty.Gen., for appellee.
This is an appeal from a conviction of theft (I.C.1971, 35--17--5--3, being Burns' § 10--3030) after a trial by jury in the Wayne Circuit Court, Judge James Puckett presiding. Appellant was sentenced to the Indiana State Prison for one to ten years and fined.$1000.00. He bases his appeal on the contention that the evidence at trial was insufficient to sustain his conviction.
Five of the State's twelve witnesses lived in separate houses across the street from the City Cemetery in Cambridge City, Indiana. They all testified that in the late evening and early morning hours of June 11th and 12th, 1970, they were in their respective homes when their attention was drawn to a blue panel truck with a loud engine and a white painted stripe on the side that continued to circle the block and drive past the cemetery. The truck circled the block for some time, as many as twenty times according to one of the witnesses, and finally stopped in front of the entrance to the cemetery. All of the five witnesses remained at their homes but separately continued to observe the truck's activity. They testified that some moments after the truck stopped they heard another motor start up for a few seconds and then fall silent. Three of the five stated that they recognized the second engine as being that of a tractor lawnmower used to cut the grass at the cemetery. Two of the five stated that as the second engine stopped they heard what they described as the sound of boards rattling on the bed of the truck. None of the witnesses saw anyone in the truck or saw anyone put anything in the truck during the time when it was stopped by the entrance.
After the second engine had stopped the truck started up and drove down the street, but did not attempt to circle the block again. The witnesses were not able to agree on the precise time the truck had stopped in front of the cemetery. One stated that it was about midnight; another said between 12:00 a.m. and 12:30 a.m.; while a third witness placed the hour as late as 1:00 a.m. Two of the witnesses became suspicious and phoned the police. The police subsequently investigated the cemtery that same night and found that a shed had been broken into and a tractor mower was missing. The cemetery caretaker and cemetery manager both testified that the mower had been in the shed at the close of the work day on June 11th.
Officer Mannis Boyer of the Cambridge City Police Department testified that he was riding in a patrol car on the night of the incident with another officer. At 1:00 a.m. they stopped a green panel truck with a white stripe painted on the side because its license plate light was not operating. They apparently were informed of the suspicious actions of a similarly described truck because the officers contacted several of the witnesses and had them come down to where the truck was stopped. Four of the State's witnesses identified the truck as the same one that was at the cemetery earlier in the evening.
The officers searched the truck but found only some grease spots on the floor and what was described at the trial as a ball of grass 'about the size of a quarter'. When the police stopped the truck it was occupied by three men: Okie Clay, Larry Watson and the appellant in this case. The police continued their investigation at the scene until about 3:00 a.m. at which time the truck was towed by the police to a local service station where it remained for approximately eight days. A car salesman also testified that he had sold this truck to appellant several days before on the 5th of June.
Paul Petry testified that he was a retail lawnmower salesman in New Paris. He stated that at 3:00 a.m. on June 12th, a tractor lawnmower was delivered to him at his residence in New Paris. At 7:00 a.m. the same day Okie Clay came to Petry's house and asked Petry...
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