Roark v. State, 29287

• Decision Date: 08 December 1955
• Docket Number: No. 29287,29287
• Citation: 234 Ind. 615,130 N.E.2d 326
• Parties: Arnie ROARK, Jay Holcomb, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 326

130 N.E.2d 326

234 Ind. 615

Arnie ROARK, Jay Holcomb, Appellants, v. STATE of Indiana, Appellee.

No. 29287.

Supreme Court of Indiana.

Dec. 8, 1955.

T. Ernest Maholm, Indianapolis, for appellants.

Edwin K. Steers, Atty. Gen., Owne S. Boling, Deputy Atty. Gen., for appellee.

LANDIS, Judge.

This is an appeal from a judgment convicting appellants of automobile banditry for which they were sentenced for a determinate period of 10 years.

Appellants have assigned error in their brief (1) upon the overruling of their motion for a consolidation of the three indictments, viz.: second degree burglary, entering with intent to commit a felony, and automobile banditry and, (2) upon the overruling of their motion for a new trial, contending the decision of the court was not sustained by sufficient evidene and was contrary to law.

As to their first assigned error, appellants concede that in the absence of statute in this state, it is within the sound discretion of the trial court to determine whether causes of action should be consolidated, and that such ruling is not ground for reversal unless the discretion was manifestly abused. See Trook v. Crouch, 1924, 82 Ind.App. 309, 312, 137 N.E. 773; Atkinson v. Disher, 1912, 177 Ind. 665, 673, 98 N.E. 807.

We cannot presume the trial court abused its discretion in overruling the motion to consolidate, and appellants not having shown in what respect the court abused its discretion, we must conclude it did not do so. Accordingly, no error is established on the denial of the motion to consolidate.

Appellants' second assigned error, raised in their motion for a new trial, contends the decision of the court was not sustained by sufficient evidence, and was contrary to law. To determine this question this court will not weigh the evidence on appeal, but will examine the record to see if there is any evidence, or any reasonable inferences therefrom, which may be drawn from the evidence, which will sustain the verdict of the jury or the decision of the trial court. Todd v. State, 1951, 230 Ind. 85, 87, 101 N.E.2d 922, 923.

The evidence most favorable to appellee (The State) shows that on June 14, 1954 appellants and one Edward Coronett were seated in a parked automobile when a Mrs. Charles Weisenhan, who had been acquainted with them, approached them and requested a loan of $5 in order that she might visit her husband in the hospital. Mrs. Weisenhan stated she would repay the loan the following evening if appellants would go out to her farm the next day and sack three bags of wheat and wait for her; that she and appellants would take the wheat to the mill and sell it and she would pay appellants back. She further said she would meet appellants at the farm, and they would find empty sacks on the back porch. Pursuant to said arrangement, appellants, with said Coronett, the following day drove the automobile belonging to the wife of one of the appellants, to said farm. The farm, it appears, was owned by Mrs. Weisenhan and her husband, and leased to Joseph and Bernard Dall, with lessors (Mrs. Weisenhan and her husband) retaining the right to occupy the farm residence, the yard and garden patch. Appellants drove past the barn in said automobile and parked in the driveway near the house. They knocked at the doors but no one responded. They sat down to wait for Mrs. Weisenhan and waited for some time, but as it was getting late in the evening, they went to the back porch and secured three empty bags and went out to the open barn, where, with Coronett, they filled three bags full of wheat. After the sacks were filled Coronett picked up one of them and started out the barn, when the lessee, Joseph Dall, hiding in ambush, and without any warning, fired a twelve gauge shotgun into the open door of the barn, critically injuring appellants. The said Joseph Dall made no investigation of the injuries he had caused, but drove to a neighbor's home and called the sheriff. The injured appellants managed to get to a village nearby and asked that the sheriff be called. Appellants told a state policeman they had been in the neighborhood looking for Fes Roark, a brother of one of the appellants. Appellants told the sheriff they entered the barn to urinate. Appellants were taken to a hospital for treatment and convalescence, and two days after said alleged incident, were indicted with Coronett by a grand jury of: (1) second degree burglary; (2) entering with intent to commit a felony; (3) automobile banditry. Coronett was never apprehended, and appellants were tried and convicted by the court of automobile banditry, and sentenced to ten years' imprisonment.

It is a well settled general principle of law that a crime is not committed if the mind of the person doing the act is innocent, (actus non facit reum, nisi mens sit rea). Fritz v. State, 1912, 178 Ind. 463, 466, 99 N.E. 727; 22 C.J.S., Criminal Law, § 29, p. 84; Bishop on Statutory Crimes 3d ed., § 132, p. 140.

The indictment for automobile banditry in the case at bar, charged appellants with unlawfully and feloniously entering a barn '* * * with intent to commit a felony to wit * * * feloniously to steal and carry away three sacks of wheat of the value of $12.00 * * *.' The indictment further charged the appellants with...