Pullins v. State, 1067S113
| Decision Date | 25 March 1970 |
| Docket Number | No. 1067S113,1067S113 |
| Citation | 253 Ind. 644,256 N.E.2d 553 |
| Parties | Edward George PULLINS, Jr., Appellant, v. The STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Robert A. Mucker, Rolland L. Strausbaugh, Lafayette, for appellant.
Theodore L. Sendak, Atty. Gen. (John J. Dillon, former Atty. Gen.), Douglas B. McFadden, Asst. Atty. Gen., for appellee.
Appellant was convicted of robbery while armed. The evidence most favorable to the State reveals the following events: At 1:40 a.m. on October 12, 1966, two men entered the office of the Kings Crown Motel in West Lafayette, Indiana. Both men were brandishing weapons. The first one to enter was later identified as the appellant. He had a red bandanna over the lower portion of his face and was armed with a chrome plated pistol. Appellant jumped over the counter and removed the money from the cash register while his accomplice, who was wielding a shotgun, forced the desk attendant to lie on the floor. Upon their departure, the attendant telephoned the police and gave them a description of the robbers. Two police officers observed two suspects, fitting the description given, driving an automobile south on U.S. 52. The time was 2:00 a.m. The suspects' car accelerated up to 120 miles per hour. The officers gave chase. At this point another police car, which had proceeded to U.S. 52 to observe traffic and possible suspects, joined in the chase. The officers exchanged gun shots with the occupants of the fleeing car. At one point a shotgun was thrown from the window of the suspects' fleeing car. Another gun shot caused the fleeing automobile to swerve out of control, cross to the other side of the highway, and crash. When the officers arrived at the scene the suspects were not to be found. Additional help was summoned to search the area, which was approximately thirty (30) miles from the scene of the robbery.
The police received a call from a resident of the area being searched. He stated that when he entered his basement he saw a negro male sitting in the tool crib. The man was apparently unconscious or asleep. When the police arrived in response to the call the man had departed. The search of the surrounding area intensified. In a cornfield adjoining the house two officers found the appellant. He was lying on the ground camouflaged beneath corn leaves, weeds and other cover. Appellant complained of injury to his arms. A search of appellant revealed $157.00 in currency in his pocket and $180.00 in currency in his wallet. He was clutching a five dollar bill in one hand. A red bandanna was found at the wrecked car. It was identified as similar to the one the robbers wore.
Appellant's first specification of error is that there is insufficient evidence to support a finding of his involvement in the robbery. The argument under this specification relates primarily to the testimony of the desk attendant and his identification of the appellant. The attendant made a positive and unequivocal identification of the appellant as one of the robbers. The record contains the following:
'A. Well, the first man in had a bandanna over his face. He had on a dark long sleeved sport shirt and dark sport pants.
'Q. What race was he?
'A. He was Negro.
'Q. Mr. Spielman, I'll ask you whether or not the man, who was the first man who came in the door on that night of October 12th--the man who had the pistol in his hand, whether or not that man is in the courtroom today?
'A. Yes, sir he is.
'Q. And where is he seated?
'A. This man right here.
'Q. The man in the blue shirt? Pardon me, the man in the blue sweater?
'A. Yes, sir.
'Q. Would you point him out to the jury?
'A. This man.
'Q. How do you know that is the same man?
On cross-examination the witness again testified that there was absolutely no doubt in his mind that appellant was one of the robbers. Appellant on appeal attempts to cast doubt upon the credibility of this testimony. Suffice it to say that the witness was subjected to thorough cross-examination. It is not our function to weigh such testimony or pass upon the credibility of witnesses. Croney v. State (1969), Ind., 247 N.E.2d 501.
The next specification of error relates to the admission into evidence of various exhibits. In particular, appellant questions the relevancy of State's Exhibits 2, 3, 6, 7 and 8 which were admitted into evidence over the appellant's objection. We feel the admissibility, materiality, relevancy and competency of the above exhibits were proper as proving or tending to prove a material fact. Any fact which tends to connect appellant with the commission of the crime is admissible. Foreman v. State (1938), 214 Ind. 79, 14 N.E.2d 546.
Exhibit No. 2 was a .25 calibre chrome plated pistol which was found along highway U.S. 52 on a farm a short distance from where the getaway car crashed and in the vicinity where appellant was found. The desk attendant testified that the pistol looked like the chrome plated gun used by appellant in the robbery. He stated it was either the same pistol or one extremely similar to the pistol appellant used. Likewise, the attendant testified that Exhibit No. 6, which was a shotgun, was similar to the shotgun carried by appellant's companion. The shotgun was found alongside U.S. 52. As was previously noted, evidence was to the effect that a shotgun was seen being thrown from the fleeing automobile. A detective recovered the shotgun and attached his initials to it. Where there is evidence of identification by direct testimony, objections to its sufficiency go to the weight rather than to the admissibility of the articles. In Jackson v. State (1967), 248 Ind. 579, 228 N.E.2d 3, we held that certain items were admissible into evidence although the witness testified they were similar to the items the accused wore but that he was not absolutely positive that the articles were the same ones that the accused wore at the time of the offense.
State's Exhibit No. 3 was a clip for a .25 calibre pistol. When the pistol, Exhibit No. 2, was found it contained a clip. When the clip was offered into evidence however, the police then testifying stated that it would be impossible for him to tell whether Exhibit No. 3 was the particular clip found in the pistol. Appellant objects to the use of the clip as evidence. Appellant has failed to relate all the relevant testimony. The record...
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