Smith v. State

Decision Date05 November 1937
Docket Number26851.
Citation10 N.E.2d 899,212 Ind. 605
PartiesSMITH et al. v. STATE.
CourtIndiana Supreme Court

Appeal from Jefferson County Circuit Court; Curtis Marshall, judge.

George W. Miles, of Madison, for appellants.

Omer Stokes Jackson, Atty. Gen., and Thos. Longfellow and Warren W. Martin, Deputy Atty. Gens., for the State.


The appellants were indicted and convicted of petit larceny. The error assigned is the overruling of a motion for a new trial. The reasons assigned in the motion for a new trial are as follows: (1) The verdict is not sustained by sufficient evidence; and (2) is contrary to law; and (3) the court erred in permitting Exhibit B to be introduced in evidence consisting of cigarettes and cigars, for the reason there was no evidence to show that the package was the property of William A. Young and for the further reason it had no connection with the transaction, and that the court erred in permitting one Raymond E. Davis to testify in said cause as a finger print expert.

The indictment charged in substance that the appellants did feloniously steal and carry away the personal goods and chattels of one William A. Young, consisting of thirteen cartons of cigarettes, one box of cigars, a cigarette lighter, and $13 in money, all of the value of $27.

William A. Yound lived in the city of Madison, Ind., and conducted a confectionery containing candies, cigars, cigarettes, soft drinks, lunches, and beer. The appellants lived on a farm eight or nine miles from Madison owned by a Mr. Rector who was the stepfather of the appellant, Hervey Smith. The appellant, Louden, lived on the Rector farm and his house was about one-quarter of a mile from the Rector home. Some time after mid-night on July 12, 1936, the store room of William A. Young was broken into and the articles heretofore mentioned were stolen. Delbert Reed, an employee of the Dairy Products Company, whose platform is near the rear of Young's place, saw a Chevrolet sedan, with two persons in it, in the alley back of Young's store, between 3 and 3:30 o'clock a.m. on July 12, 1936. He testified that he took the license number on said car, which was an Indiana license, No. 289754. Other evidence showed that this number belonged to a Chevrolet sedan owned by Rosella Rector, mother of the appellant Hervey Smith. It is in evidence that about 6 p.m., July 11th, the appellants were at a filling station near Madison, operated by a Mr. Bumen. They had with them a case of beer which they placed on ice in a yard near the filling station. They were there about one and one-half hours and then, in company with Bumen, they drove into Madison and had a lunch and then returned to the filling station and remained there until about 12:30 a.m., July 12th when they left, but returned again about 5 a.m. when they got some soft drinks and left. The evidence also shows that they appeared at a filling station in Madison about 3:30 or 3:45 a.m. on July 12th and got some gasoline. The attendant said he saw a blanket on the back seat of the car. Smith gave the attendant four quarters, a half-dollar, and some pennies. The attendant took out 60 cents and returned the balance to Smith. They then left and went up the hill toward North Madison.

One Charles Hack testified that between 12 and 1 o'clock on the morning of July 12th, he met the appellants at a beer tavern in Madison; that they were in a Chevrolet sedan and that they drove him home. He said it might have been about 1:30 a.m. Another witness said that they were at his filling station about 6 a.m. on July 12th, and bought some gas. Neither one of the appellants took the witness stand.

A few days after the articles were stolen part of them were found under a clump of briars and bushes on the farm of Mr. Rector near a highway and near the home of the appellants. While it was impossible for Mr. Young to identify the articles found as the ones taken from his store, they were the same brand of cigarettes and cigars which had been taken from his store. There was also a strip of metal which was used to hold the lid of the cigar box open found with the cigars and cigarettes, which was the same kind as had been taken from the store.

While the appellants were in jail, a Mr. Davis, who claimed to be a finger print expert, in the presence of Mr. Miles, the attorney for the appellants, and others, took the finger prints of the appellants without any objections on the part of the appellants or their attorney, Mr Miles. Leslie S. Bear, sheriff of the county, testified for the State. It appears from his evidence that he brought the cigars and cigarettes from the place where they were found to the jail, and that he gave them to Mr. Davis to examine for finger...

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