Sharp v. State

• Decision Date: 29 July 1970
• Docket Number: No. 469,469
• Citation: 254 Ind. 435,22 Ind.Dec. 245,260 N.E.2d 593
• Parties: David SHARP, Jerry Sharp, Russell Sharp, Appellants, v. STATE of Indiana, Appellee. S 81.
• Court: Indiana Supreme Court

Page 593

260 N.E.2d 593

254 Ind. 435

David SHARP, Jerry Sharp, Russell Sharp, Appellants, v. STATE of Indiana, Appellee.

No. 469 S 81.

Supreme Court of Indiana.

July 29, 1970.

Bayliff, Harrigan & Cord, by J. Conrad Maugans and C. Michael Cord, Kokomo, for appellants.

Theodore L. Sendak, Atty. Gen., Kenneth M. McDermott, Deputy Atty. Gen., Indianapolis, for appellee.

JACKSON, Judge.

Appellants were charged by affidavit, signed by Fred G. Osborn, with the crime of second degree burglary. Separate affidavits were filed for each defendant, however, the language of each is identical, except for the defendant so named therein, and reads in pertinent part as follows:

'That on or about the 7th day of June, 1968, at the county of Howard, and State of Indiana, David Shapr (Jerry Sharp, Russell Sharp) late of said county, did then and there unlawfully and feloniously break and enter the building and structure located at 1730 Boulevard W., Kokomo, Indiana, which said building and structure was not then and there a place of human habitation, and which said building and structure was then and there in the lawful possession of Arlen Barker, with the intent to commit a felony therein, to-wit: the crime of theft then and there being as affiant is informed and verily believes, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Indiana.'

On July 18, 1968, each appellant entered a plea of not guilty to the crime as charged and requested a trial by jury. On February 18, 1969, said requests were withdrawn, and all three causes were consolidated for trial by the following order:

'By agreement of the defendant (David Sharp) and the State of Indiana, this cause (No. 5158) is ordered consolidated with State of Indiana vs Jerry Sharp, Cause No. 5159, and State of Indiana vs Russell Sharp, Cause No. 5160, in the Howard Circuit Court. Said Causes are now ordered consolidated.'

Also on February 18, 1969, said causes were tried to the court without the intervention of a jury, and the court found each defendant guilty of second degree burglary as charged. On March 17, 1969, appellants filed their motions for new trial, said motions reading in pertinent part as follows:

'Comes now the Defendant in the above entitled cause, and moves the Court for a new trial upon the following grounds, and for the following reasons:

(1) The finding of the Court is contrary to law.

(2) The finding of the Court is not sustained by sufficient evidence.

WHEREFORE, the defendant prays the Court for a new trial of said cause.

MEMORANDUM IN SUPPORT OF MOTION FOR NEW TRIAL

There is absolutely no evidence to connect the defendant with the alleged burglary, nor are there any facts to support an inference connecting the defendant with the alleged burglary. The standard is proof beyond a reasonable doubt, not mere guess, speculation or suspicion.

The evidence shows that after an alleged burglary by two, not three, unidentified men, the defendant and two others similarly charged and tried with defendant, were found walking, not running, down a public sidewalk where they had a right to be, not on private property. No tools or products of a burglary were found on this defendant or either of the others. There were no confessions or admissions. In short, there was no evidence.

How can three men be guilty of a crime when the undisputed evidence shows only two men committed the crime where there is no evidence or charge of a conspiracy, assessory, etc.

Although circumstantial evidence can be sufficient to sustain a conviction, it is not sufficient in this case. The law is very clear and can be very clearly pointed out by comparing two typical cases, one where the evidence was sufficient and one where it was not.

In Medsker v. State (Ind.1968) (249 Ind. 369) 232 N.E.2d 869, the evidence which the court found sufficient was as follows: At 12:35 a.m. a burglar alarm alerted the witness who went to the scene and found an automobile with two men parked in front of the premises. The witness saw the defendant walk out from behind the building and enter the car. The car drove down a dead end street and when on the way back was stopped by a police car. The witness definitely identified the defendant as the person who walked out from behind the building. Tools, capable of being used in the burglary were found along the road where the car had travelled. There was also an implied admission on the part of the defendant. The Court stated at page 871, 'In the case before us the appellant was discovered, not in a public place where he had a right to be, but on private property, coming from behind a building which had a few minutes before been broken into and a burglar alarm sounded as a result of such break-in.'

In comparison, Melvin v. State (Ind. 1968) (249 Ind. 351) 232 N.E.2d 606, held that the following evidence was not sufficient. At 9:30 p.m. a witness heard a noise and went to the alley behind his house. In the alley he heard a crash which sounded like a cash register dropping. He went around the corner and saw a cash register some twelve feet away and saw the defendant walking in the opposite direction about three feet from the cash register. The defendant was not running. No one else was seen around. In commenting on this evidence, the Court stated at page 607, 'In the case before us there is no corroborating evidence to support the charge of entering the building in question, nor is there any corroborating evidence to support a felonious intent. The evidence here does not show that he had the cash register in his hands or in his possession * * *.'

In Wood v. State (1934), 207 Ind. 235, 192 N.E. 257, the Court stated that the verdict cannot be based upon a guess or supposition that the appellant was connected with the possession of a still, which was found in the basement of a garage, although she lived in the house on the same premises where the garage was located, but the garage was used by other parties. The Court stated (at 207 Ind. p. 239, 192 N.E. p. 259):

'In the instant case we may say that the evidence but supports a guess or suspicion that the appellant was connected in any manner with the still and distilling apparatus. The verdict and judgment is not supported by sufficient evidence * * *.'

The Melvin case is very similar to the facts in the case at bar. The distinctions with the Medsker case and other cases finding that circumstantial evidence was sufficient places the defendant on the premises involved or placed stolen property in the possession of the defendant. None of that is here. Like the Melvin case, the defendants were in a public place where they had a right to be. They were walking, not running, so there is no inference of guilty by fleeing. There was no stolen property on their possession. In addition, none or the three defendants were identified by the witness as the person or persons who participated in the alleged burglary.

The insufficiency of the evidence in this case is so gross that the finding of the Court is contrary to law.'

The motion for new trial filed by each defendant contained the same language as hereinabove set forth. Said motions were overruled on April 8, 1969. Appellants' sole Assignment of Error is that: '1. The Court erred in overruling appellants' motions for a new trial.'

From the evidence adduced at trial it appers that, at approximately 12:30 a.m. on the date in question, Mrs. Ethel Helton was at home waiting for her husband to return from work when she heard glass breaking. She quickly turned off the bedroom lights and looked out the window toward a nearby Gulf Service Station which was situated on the northeast corner of the intersection of West Boulevard and Berkley Road in Howard County. The Helton residence is located approximately 100 yards northeast of the station, there being a vacant lot between the two. She saw what appeared to be two men breaking out a window at the station. Having broken the window to gain entrance, the men raised the garage door and entered the building. Mrs. Helton immediately picked up the phone and had the telephone operator call the Sheriff's Department to report the incident. She then saw the two men go in and out of the station carrying what she believed to be tires and other articles. At this time a Sheriff's car pulled up to the side of the station, and Mrs. Helton testified that she saw the men put the garage door down and run 'sorta' north from the station. She lost them in the shadows.

At approximately 1:00 a.m. on the night in question, Deputies Hawks and Zeck arrived at the Gulf Service Station aforementioned in response to the call from Mrs. Helton. Deputy Zeck proceeded to the rear of the building where he saw that a window had been broken. He also noticed several articles near a trash bin. Deputy Hawks went to the front, southwest corner of the station, and, while there, he heard...