Pierce v. State
| Decision Date | 17 June 1948 |
| Docket Number | 28326. |
| Citation | 79 N.E.2d 903,226 Ind. 312 |
| Parties | PIERCE v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Criminal Court, Marion County; Floyd R Mannon, Special judge.
Jack B. Kammins, of Indianapolis, for appellant.
Cleon H. Foust, Atty. Gen., Frank E. Coughlin, 1st Asst. Deputy Atty. Gen., and Merl M. Wall, Deputy Atty. Gen., for appellee.
Appellant was prosecuted on count three of an affidavit filed in the trial court. The sufficiency of the affidavit is not questioned. The cause was tried by the parties and the court on the theory that this count of the affidavit charged the defendant with the crime of procuring twenty-five dollars in money from one Matthew Overton by false pretenses. For this reason, we shall treat the charge likewise.
The trial was by the judge without a jury, resulting in a finding of 'guilty of false pretense as charged in the third count of the affidavit' and that defendant is 38 years old. Upon this finding judgment was rendered sentencing the defendant to the Indiana State Prison not less than one nor more than seven years, and fining him ten dollars.
A motion for new trial was duly filed, sufficient to present two questions in this appeal; that the finding is not supported by sufficient evidence and that the finding is contrary to law. The assignment of error charges error in overruling the motion for new trial.
In addition to the motion for new trial filed for appellant by his attorney, appellant filed another himself, containing eleven alleged causes, only two of which are sufficient to present any question. They are the statutory causes as noted above. Both motions were overruled.
In determining the sufficiency of the evidence to sustain the conviction we cannot weigh the evidence. In this case that duty was for the trial court, first, in rendering the finding and second, in passing upon the motion for new trial. We may examine the evidence only to ascertain if there is some competent evidence or inference on the several propositions essential to support the finding and judgment.
The statute defining the offense charged and providing the penalty therefor so far as applicable to this case, is as follows:
'Whoever with intent to defraud another, designedly, by * * * any false pretense * * * obtains from any person * * * any money * * * or thing of value, * * * shall, on conviction, be imprisoned in the state prison not less than one [1] year nor more than seven [7] years, and fined not less than ten dollars [10.00] nor more than one thousand dollars * * *.' § 10-2103, Burn's 1942 Repl.
The uncontradicted evidence shows that appellant, one Hazel Helene Importico and Marott Eugene Pierce came to Indianapolis from Detroit, Michigan on a Greyhound bus, arriving on Saturday, January 11, 1947 about four o'clock A.M. They later the same day took lodging at the English Hotel. Appellant placed an advertisement in the Indianapolis Sunday Star the next day as follows:
One Matthew Overton of Indianapolis, saw the advertisement Sunday morning, called Mr. Todhunter over telephone at the English Hotel, then went to the hotel and talked to him about the advertised car. By invitation of Todhunter, Overton returned later, contracted for the car and made a $25.00 deposit on it. Todhunter gave him a receipt as follows:
Todhunter told Overton the car was at the parking garage at the Motor Club and could not be seen until Monday morning. Mr. Overton called the hotel Monday morning, and was referred to the police detective department and learned that Todhunter was in jail. At the trial Mr. Overton identified the defendant, Pierce, as the man with whom he dealt, and who had posed as 'Todhunter' in the advertisement and sale of the car to him. Mr. Overton did not get the car--never saw it, and does not know there was such a car.
Mr George Winkley of...
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