Ross v. State

Citation204 Ind. 281,182 N.E. 865
Decision Date26 October 1932
Docket NumberNo. 25880.,25880.
PartiesROSS v. STATE.
CourtSupreme Court of Indiana


Appeal from Jay Circuit Court; Frank Gillespie, Judge.

Charles O. Ross was convicted of bank robbery, and he appeals.


Whitaker & Mills, Smith & Smith, and James J. Moran, all of Portland, for appellant.

James M. Ogden, Atty. Gen., and V. Ed. Funk, Deputy Atty. Gen., for the State.


Appellant was charged by affidavit1 with the crime of bank robbery under section 2425.1, Burns' Ann. Ind. St. Supp. 1929 (Acts 1927, c. 158, p. 470,2 and upon trial was found guilty. He assigns as error the following:

1. The court erred in overruling appellant's motion to quash the affidavit herein.

2. The court erred in overruling appellant's motion for a new trial.

3. The court erred in overruling appellant's written motion to suppress evidence.

4. The court erred in overruling appellant's motion in arrest of judgment.

Appellant's motion to quash was based upon the following reasons:

First, that the facts stated in the affidavit do not constitute a public offense.

Second, that the affidavit does not state the offense with sufficient certainty.

[1] It will be noted that the affidavit here follows the language of the statute and in addition alleges that that which appellant purposed to steal was “money.” Appellant contends that “the affidavit does not charge the appellant with stealing or attempting to steal from any building, bank, safe or other depository, any bonds or other valuables,” and insists that “money is not mentioned in the statute under which appellant was prosecuted.” But the statute provides that the doing or attempting to do certain acts “for the purpose of stealing from any building, bank, safe or other depository of money, bonds or other valuables” shall constitute the offense of bank robbery, and does not prescribe or define, as an element of the offense, the nature, kind, value, or ownership of the objects of the defendant's purpose to steal. The elements of the offense alleged in this affidavit are: (a) An intent to commit larceny, (b) confining and attempting and threatening to confine, maim, injure and wound, and putting in fear, Blanche Morrical, (c) for the purpose of stealing, (d) from the Pennville State Bank. The statute does not require any other or additional element to complete the offense of bank robbery, although the statute specifies certain other acts which shall also constitute bank robbery.

[2] Appellant contends, in support of his motion to quash, that the statute under which this prosecution was brought, section 2425.1, supra, was “repealed prior to the commission of the alleged offense charged in the affidavit,” citing Acts 1927, p. 576, c. 201, Acts 1929, pp. 139, 136 and 137, cc. 55, 54, which deal with robbery, the commission of certain offenses while armed with a deadly weapon, robbery and the infliction of a wound in the commission of robbery, burglary, and automobile banditry, respectively. Each of the chapters in which these statutes are contained have clauses repealing all conflicting laws, but there is nothing contained in any of the sections which appellant cites which is in any way in conflict with section 2425.1, supra. On the contrary, it is apparent that it was the intention of the General Assembly that chapter 158 of the Acts of 1927, p. 470 (section 2425.1) be not repealed by any of the acts referred to. This is apparent from chapter 55, Acts of 1929, p. 139, the last of the acts cited to be approved, in which the commission of or attempt to commit certain offenses while armed is made a separate felony and independent of the one committed or attempted to be committed. One of the purposed felonies named in that section is “bank robbery,” thus indicating that at the time the act was passed section 2425.1, supra, was deemed by the Legislature to be unrepealed. There was no error committed in overruling the motion to quash. The foregoing discussion disposes of the alleged error in overruling appellant's motion in arrest of judgment.

[3][4] Appellant's motion for new trial contained 88 causes which are grouped in his points and authorities under 28 points and propositions. Points I to IV (pages 118 to 124, Appellant's Brief) present the proposition that the verdict was not sustained by sufficient evidence and was contrary to law. Appellant contends that this is not a case of conflict of evidence, but that, because of occurrences before the trial and because of other evidence introduced on the trial, the identification testimony of the assistant cashier, without which a conviction would be clearly unsupported, was absolutely destroyed; and that this case calls for the application of the statement of this court in Bessette v. State (1885) 101 Ind. 85, 91, which is as follows: “Looking at the whole record in this case, and considering that a conviction of the appellant was had on the not entirely consistent testimony of one unsupported witness, we feel constrained, lest injustice may have been done, to reverse the judgment, not so much upon any one, as upon all the questions which are made in the record, taken together.”

The assistant cashier testified, in substance, that she saw the defendant at the bank on the occasion charged; that she was not acquainted with him and did not remember ever seeing him before; that he walked into the bank and spoke to her and she spoke to him; that she got a square view of his face at that time. He was dressed in faded blue overalls, brown shirt, and felt hat; he had not shaved for at least a couple of days; she saw him go to a desk against the opposite wall, after which she did not notice him any further. Then she looked up and he was at the window with a gun in his hand and a mask on his face, a soiled white handkerchief just below his eyes. He told her to hand out the currency and pointed the gun at her; she told him to come back and get it; he said: “Hand out the currency and no foolishness about it.” She looked at him an instant and turned and got the currency, $1, 848. She next saw him on September 5th, two days later, at the county jail. She was standing on the porch and as the defendant came through the door with a group of men she recognized him as the one who had robbed the bank; and when she heard him speak she recognized his voice as being the voice of the man that robbed the bank. On the witness stand she positively identified the defendant as the robber.

The appellant contends that the testimony of the assistant cashier was “absolutely destroyed by the facts testified to by her; the facts testified to by other witnesses and the circumstances in evidence.” The facts and circumstances which appellant contends destroyed that part of the assistant cashier's testimony supporting the verdict is to the following effect:

(a) The day before the assistant cashier identified appellant, a man by the name of Jackson was taken to the bank by the officers, viewed by her, and then taken to jail. Jackson was released several hours later when the appellant was placed in jail. On the following day the assistant cashier told Jackson, in substance, that she was awfully sorry; she would like to broadcast to the world that he wasn't the man.

(b) Appellant was held in jail for several hours preceding his identification in order, appellant contends, that he might develop a growth of beard to correspond to the man who robbed the bank. To this extent, it is urged, he was furnishing evidence against himself.

(c) While appellant was on the porch of the jail, under the observation of the assistant cashier, a handkerchief was placed over his face by one of the officers so that he might, according to the appellant's contention, “correspond as near as possible to the one who robbed the bank.” Appellant comments: “The prisoner again being used for the purpose of self-incrimination and unlawfully so.” (Appellant's Brief, p. 121.)

(d) There was other testimony introduced on behalf of the appellant which, if believed by the jury, would have established that the appellant was not in Pennville at the time of the robbery but elsewhere, and also that it was highly improbable and unlikely that he could have been in Pennville at the time of the robbery.

Appellant contends that the foregoing facts and circumstances have so discrediting an effect upon the testimony of the assistant cashier as to make applicable to this case the above-quoted statement of the court in Bessette v. State, supra. However, the reversal there was not because of the “not entirely consistent testimony of one unsupported witness,” but rather because numerous other errors had been committed by the trial court in his rulings on evidence offered by the accused; and on remarks made by the prosecuting attorney relating to the personal appearance of the defendant “as an accused person before the bar of the court,” and comments on the probable state of mind of one of the jurors. These errors were such that, in view of the fact that the conviction was based solely on such testimony of a single witness, the judgment was reversed “lest injustice may have been done.” In that case, a prosecution for rape, the proceedings were not initiated until nineteen months after the alleged offense; the “one unsupported witness” was the prosecuting witness, whose testimony at the trial concerning the alleged criminal transaction was inconsistent with her testimony in the preliminary proceedings before a justice of the peace. But in the instant case it cannot be said that the facts and circumstances to which appellant refers have the effect of destroying the testimony of the assistant cashier in her identification of the appellant. The fact that Jackson was first arrested, observed, and identified by her as the man who robbed the bank does not change the fact that on the trial she testified positively that appellant was the man. Further, the record does not show a positive identification of Jackson...

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4 cases
  • Kestler v. State
    • United States
    • Indiana Supreme Court
    • April 6, 1949
    ... ... explained to it the purpose and use of the safety feature on ... the grip or butt thereof, together with the operation of the ... manual safety catch ...           The ... credibility of the witnesses and the weight to be given their ... testimony was for the jury. Ross v. State, 1933, 204 ... Ind. 281, 289, 290, 182 N.E. 865, 868. The jury had the right ... to weigh the evidence and to believe or disbelieve any given ... item of evidence. The jurors watched the witnesses on the ... witness stand, they observed their demeanor, and their candor ... or lack of ... ...
  • State v. Tracy
    • United States
    • Oregon Supreme Court
    • March 22, 1967
    ... ... Ev., 11th Ed., § 1141); to put on a blouse to see if it fits him (Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, 20 Ann.Cas. 1138); to place a handkerchief over his face (Ross v. State, 204 Ind. 281, 182 N.E. 865); to stand up and remove his glasses (Rutherford v. State, 135 Tex.Cr.R. 530, 121 S.W.2d 342); to remove his coat and shirt and permit the jury to see scars on his body and to don a shirt introduced in evidence (State v. Oschoa, 49 Nev. 194, 242 P. 582); or to ... ...
  • Fisher v. State, 30634
    • United States
    • Indiana Supreme Court
    • September 22, 1966
    ... ... The credibility of the witnesses is to be determined by the trier of fact, and this court will not determine the credibility of witnesses. Denson v. State (1960), 240 Ind. 324, 163 N.E.2d 749; Anderson v. State (1959), 239 Ind. 372, 156 N.E.2d 384; Ross v. State (1933), 204 Ind. 281, 182 N.E. 865 ...         Since we find no error in the proceedings below, the judgment of the trial court is affirmed ...         [247 IND 532] ... ...
  • Ross v. State
    • United States
    • Indiana Supreme Court
    • October 26, 1932

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