Rosenberg v. State

Citation134 N.E. 856, 192 Ind. 485
Case DateMarch 29, 1922
CourtSupreme Court of Indiana

134 N.E. 856

192 Ind. 485

State of Indiana

No. 23,936

Supreme Court of Indiana

March 29, 1922

Rehearing Denied November 22, 1922, Reported at: 192 Ind. 485 at 491.

From Tippecanoe Circuit Court; Homer W. Hennegar, Judge.

Prosecution by the State of Indiana against Isadore Rosenberg. From a judgment of conviction, the defendant appeals.


Charles A. West, for appellant.

U. S. Lesh, Attorney-General, and Mrs. Edward Franklin White, for the state.

Willoughby, J. Ewbank, C. J., not participating. Myers, C. J., concurs in the conclusion.

OPINION [134 N.E. 857]

[192 Ind. 487] Willoughby, J.

The appellant was convicted by a jury on a charge of grand larceny. The property alleged to have been stolen was an automobile of the value of $ 600. The court overruled a motion for new trial, and rendered judgment on the verdict, and from such judgment the appellant appeals and assigns as error, that the court erred in overruling his motion for a new trial.

The reasons for a new trial are stated in said motion as follows: 1. The verdict of the jury is not sustained by sufficient evidence. 2. The verdict of the jury is contrary to law. 3. Newly-discovered evidence.

It is the contention of the appellant that because there is no evidence showing that any one saw the automobile stolen and that there is no evidence in the record that appellant was in the city of Lafayette, Indiana, on the night of December 10, 1920, or at any other time, the evidence is circumstantial and that circumstantial evidence to be sufficient to sustain a conviction shall be of a conclusive tendency; that it is not sufficient if merely consistent with the hypothesis of guilt, but must exclude every reasonable hypothesis of innocence; in other words, it is the contention of appellant that where the evidence leaves standing some reasonable hypothesis of innocence there can be no conviction and that when the record discloses that fact to the appellate tribunal a judgment of conviction can not be affirmed.

The rule contended for by appellant does not prevail [192 Ind. 488] in this state. The true rule for the guidance of the Supreme Court is that where the circumstantial evidence in a case is of such a character that two conflicting inferences may be reasonably drawn therefrom, one tending to prove or favorable to the guilt of the accused and the other favorable to his innocence, then under such circumstances, it is not within the province of the Supreme Court to determine which inference ought to control the jury. See: Lee v. State (1922), 191 Ind. 515, 132 N.E. 582; Wrassman v. State (1921), 191 Ind. 399, 132 N.E. 673; Howard v. State (1921), 191 Ind. 232, 131 N.E. 403.

The rule contended for by the appellant is the rule given for the guidance of the trial court in the trial of the cause, but when a case is before this court on appeal, on the sufficiency of the evidence, the court will not weigh the evidence, but if there is any evidence to sustain the verdict or finding, will sustain it.

The rule that this court will not weigh the evidence applies whether the same is direct, circumstantial, or both. McCaughey v. State (1901), 156 Ind. 41, 59 N.E. 169.

When it is proved that property has been stolen, and the same property, recently after the larceny, is found in the exclusive possession of another, a presumption arises that the party in whose possession such property is found is the thief, in the absence of any showing that such possession was innocently acquired. Isenhour v. State (1901), 157 Ind. 517, 62 N.E. 40, 87 Am. St. 228; Madden v. State (1897), 148 Ind. 183, 47 N.E. 220; Campbell v. State (1898), 150 Ind. 74, 49 N.E. 905; Johnson v. State (1897), 148 Ind. 522, 47 N.E. 926; Waldon v. State (1914), 182 Ind. 112, 104 N.E. 300; Mason v. State (1908), 171 Ind. 78, 85 N.E. 776, 16 Ann. Cas. 1212.

Evidence tending to show innocence, or in explanation [192 Ind. 489] of such possession consistent with his innocence, may be given by the accused; and, if upon the whole evidence there is a reasonable doubt of his guilt, he should be acquitted. Blaker v. State (1892), 130 Ind. 203, 29 N.E. 1077; Mason v. State, supra.

The jury, or if tried by court, the court is the sole judge as to whether the explanation or other evidence given by or on behalf of the accused is sufficient to raise a reasonable doubt of his guilt. Mason v. State, supra, and cases there cited.

To support a conviction there must be evidence that the property in question was actually stolen. The corpus delicti in larceny, like other facts in general, may be established by circumstantial evidence. While the unexplained possession by one person of the goods of another is not of itself sufficient to prove that a larceny has been committed, yet such fact in connection with the other circumstances, may be sufficient for that purpose.

It is said in 1 McClain, Criminal Law § 612: "The corpus delicti need not be shown by direct evidence; that is, there need not necessarily be proof of the loss of property by theft, distinct from the facts showing...

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  • Rosenberg v. State , 23936.
    • United States
    • Indiana Supreme Court of Indiana
    • March 29, 1922
    ...192 Ind. 485134 N.E. 856ROSENBERGv.STATE.No. 23936.*Supreme Court of Indiana.March 29, Appeal from Circuit Court, Tippecanoe County; Homer W. Hennegar, Judge. Isadore Rosenberg was convicted of grand larceny, and he appeals. Affirmed. [134 N.E. 857]Charles A. West, of Lafayette, for appella......

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