Pindell v. State
| Decision Date | 13 May 1925 |
| Docket Number | 24,257 |
| Citation | 147 N.E. 711,196 Ind. 175 |
| Parties | Pindell v. State of Indiana |
| Court | Indiana Supreme Court |
1 BURGLARY.---Circumstantial evidence held sufficient to sustain verdict.---Upon a charge of stealing tobacco from a barn, evidence showing familiarity of the accused with the location, prints of his peculiar feet and of an automobile truck driven to the barn in the nighttime, together with other circumstances, held sufficient to sustain a verdict of guilty of burglary. p. 180.
2 VENUE.---Not error to refuse change when no abuse of discretion is shown.---The granting of a change of venue from the county is within the sound discretion of the court, and when application therefor is made in the language of the statute, and no abuse of discretion is shown, it is not error to overrule the motion. p. 180.
3. CRIMINAL LAW.---Refusal of instruction concerning effect of failure of complete alibi not error in view of other instructions.---It is not error to refuse an instruction that failure of the accused to account for his whereabouts during all the time within which the offense might have been committed is not a circumstance tending to prove guilt in view of other instructions given as to reasonable doubt raised by proof of partial alibi, and that a failure to testify raised no presumption against him. p. 181.
4. BURGLARY.---Act of 1915 defining burglary in degrees is now in force.---Burglary in the second degree is properly charged under Acts 1915, ch. 165, 2 (2447 Burns 1926, 2268b Burns' Supp. 1921); this act covered the subject matter of Acts 1907, ch. 72, p. 100, and therefore repealed it by 3 repealing all laws and parts of laws in conflict. The act of 1907 being repealed, its attempted amendment by Acts 1921 ch. 117, p. 279, was ineffectual, and the act of 1915 remained in force. p. 182.
From the Franklin Circuit Court; Cecil C. Tague, Judge.
Russell Pindell was convicted of burglary in the second degree, and he appeals.
Affirmed.
George W. Pigman and Roscoe C. O'Byrne, for appellant.
U. S. Lesh, Attorney-General, and Mrs. Edward Franklin White, Deputy Attorney-General, for the State.
Appellant was convicted of breaking into a barn in the nighttime with the felonious intent to steal tobacco stored therein. Overruling his motion for a new trial is the only error assigned, under which he complains of the refusal of the trial court to grant a change of venue from the county, the giving of certain instructions and refusal to give certain others, and that the verdict is not sustained by sufficient evidence and is contrary to law.
The evidence against him was wholly circumstantial. That which most strongly tended to sustain the verdict was as follows That appellant lived with his parents at the village of Laurel; that prior to December, 1921, he had gone to the farm of Herbert Wolf and looked at his tobacco in the field, and said when it was for sale to let him know; that he "bought tobacco," and the year before had bought 12,000 pounds; that in the night between Friday, December 2, and Saturday, December 3, 1921, the barn of said Herbert Wolf, near Peppertown, in Franklin county, Indiana, about ten miles from Laurel, was entered and about 1,200 pounds of tobacco owned by him, worth twenty-five cents a pound, was carried away; that entrance to the barn was obtained by cutting away certain wires that had been fastened across the doors; that the tobacco had been stripped and "bulked down" on sticks, and what was on 150 sticks had been taken; that those sticks were left in a pile at the side of the lane, some distance from the barn; that rain had fallen and made the ground soft, and tracks made by three persons led back and forth between the barn and that place; that of the three persons one had made "peculiar tracks" of a long, narrow foot, with pointed toed shoes, the size and kind that appellant commonly wore; that the person making these peculiar tracks "set his feet out" so that they "stood at an angle," walked "slue-footed," with his toes turned far out, and made a crooked track; that appellant wore pointed toed shoes and had "crooked" feet that turned out and walked in that manner, and nobody else known to the many witnesses for the state did so, though many turned their feet out some; that two or three automobiles were heard and seen to drive up into the lane late that night and turn off their lights, and later in the night were heard to drive out again; that the tracks made by these cars were such as a Ford car would make with chains on, and led east to Peppertown and then south five miles, through Oldenburg to a bridge, but there were no fresh tracks beyond the bridge; that the tracks made by the chains ended near the bridge, and there were marks which showed where the cars had been backed in taking off the chains, and where "it looked as though they had turned around" and driven "back through Peppertown"; that in going back they would be driving north, toward Metamora, which is five or six miles north of Peppertown, and about ten or eleven miles north of where the chains were taken off; that a search warrant was obtained and the premises where appellant lived with his parents were searched, but no tobacco was found; that appellant drove a Ford car; that two weeks from the following Sunday (December 18) appellant engaged the owner of a Ford truck, who lived at Laurel, to haul a load of tobacco to Covington, Kentucky; that appellant told the man to come to a barn near Metamora for the tobacco at about one o'clock the next morning; that this barn was on a tract of 500 acres operated by R. B. (also under indictment for the same offense), but was about a mile distant and across the river from the fields in which tobacco had been raised on that farm, being on the other side of the river from the barn in which that tobacco had been hung when it was cut; that the tobacco raised on that farm was of a much coarser quality than what was taken from the Wolf farm, and the "Pool" had advanced ten cents per pound on 2,400 pounds of it; that the truck driver went to said barn at one o'clock Monday morning, and found R. B. and appellant's brother there, who helped load the 800 pounds of tobacco which had been stripped...
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