Rosenberg v. State

Decision Date29 March 1922
Docket NumberNo. 23936.,23936.
Citation134 N.E. 856,192 Ind. 485
PartiesROSENBERG v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Tippecanoe County; Homer W. Hennegar, Judge.

Isadore Rosenberg was convicted of grand larceny, and he appeals. Affirmed.Charles A. West, of Lafayette, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

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.

[1][2] 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, Ind., 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 cannot be affirmed.

The rule contended for by appellant does not prevail 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 (Ind. Sup.) 132 N. E. 582;Wrassman v. State (Ind. Sup.) 132 N. E. 673;Howard v. State (Ind. Sup.) 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.

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

[4] 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. Isenhouer v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St. Rep. 228;Madden v. State, 148 Ind. 183, 47 N. E. 220;Campbell v. State, 150 Ind. 74, 49 N. E. 905;Johnson v. State, 148 Ind. 522, 47 N. E. 926;Waldon v. State, 182 Ind. 112, 104 N. E. 300;Mason v. State, 171 Ind. 78, 85 N. E. 776, 16 Ann. Cas. 1212.

[5] Evidence tending to show innocence or in explanation 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, 130 Ind. 203, 29 N. E. 1077;Mason v. State, 171 Ind. 78, 85 N. E. 776, 16 Ann. Cas. 1212.

[6] 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, 171 Ind. 78, 85 N. E. 776, 16 Ann. Cas. 1212, and cases there cited.

[7][8][9] 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 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 that property found in the defendant's possession was wrongfully taken from the owner thereof. Proof of the act is not necessary where the circumstances can only be explained by a felonious act.” Mason v. State, 171 Ind. 78, 85 N. E. 776, 16 Ann. Cas. 1212;State v. Rodman, 62 Iowa, 456, 17 N. W. 663.

The undisputed evidence in this case shows that on the 10th day of December, 1920, Mabel Isherwood was the owner of a Ford sedan...

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