Smith v. State, 28744
| Decision Date | 22 June 1951 |
| Docket Number | No. 28744,28744 |
| Citation | 229 Ind. 546,99 N.E.2d 417 |
| Parties | SMITH v. STATE. |
| Court | Indiana Supreme Court |
William C. Erbecker, Charles D. Rogers, Indianapolis, for appellant.
J. Emmett McManamon, Atty. Gen., Frank E. Coughlin, Norman J. Beatty, Deputies, Atty. Gen., for appellee.
Appellant was charged by an affidavit in two counts, count one charging accessory before the fact of armed robbery, under § 9-102, Burns' 1942 Replacement, and count two charging accessory after the fact of armed robbery, under § 9-103, Burns' 1942 Replacement. A plea of not guilty was entered appellant waived trial by jury, the cause was submitted to the court on a plea of not guilty, finding and judgment of guilty on the second count were entered, and sentence followed.
The decision of the court is silent as to the first count, which amounts to a finding of not guilty on that county. Dehoff v. State, 1925, 196 Ind. 671, 149 N.E. 347; Ward v. State, 1919, 188 Ind. 606, 125 N.E. 397.
Appellant assigns as error the overruling of his motion for a new trial, which properly presents only the questions that the decision of the court is not sustained by sufficient evidence and is contrary to law.
The evidence reveals that on December 9, 1948, Floyd Stein was the owner of a filling station located at 2570 Bluff Road, in the City of Indianapolis; that an employee was in charge of the filling station as his agent; and that the filling station had been robbed of approximately $50 and a wrist watch.
William Owens testified, in substance, that he was convicted of armed robbery, and was serving a sentence in the Indiana Reformatory, having robbed the Stein Filling Station, on Bluff Road, in the City of Indianapolis, on December 9, 1948; that the robbery was committed by himself, and a wrist watch and approximately $32 were taken; that prior to the robbery he had stopped at the home of appellant and had a conversation with him regarding 'some stick-ups,' and appellant refused to have anything to do with the holdup of the Stein Filling Station; that about 10:50 p. m., on the same evening, he returned to appellant's home, informed him that he had robbed the Stein Filling Station, and left a wrist watch and $20 on a dresser in appellant's home, 'and asked them if they wouldn't hold it for me'; that he was driving a Red Cab at the time, but was not an employee of the Red Cab Company; that appellant then left his home with the witness, going to a filling station on Madison Avenue to get a bottle of coke; that appellant sat in the cab and the witness went to get the coke; that police officers arrested both of them at the filling station and took them to Stein's Filling Station, where the witness was identified as the man who had committed the holdup. The witness further testified that he had committed the robbery with a blue steel 32 automatic, loaded with 32-caliber bullets. The witness Owens is not related to appellant. The witness further testified that he had previously left a pocket watch and $200 on a bed in appellant's home, and that this was divided between them, and that the money from the robbery at the Stein Filling Station was also divided; that in the division appellant received approximately $15 and the wrist watch.
There was further testimony that the crime of armed robbery for which William Owens was convicted was the same armed robbery as charged in the affidavit against appellant.
Police officers testified that they arrested appellant and William Owens on the night of December 9, 1948, in a filling station located at Cavin Street and Madison Avenue, in the City of Indianapolis; that they were investigating the robbery of the Stein Service Station, and saw William Owens in the station at Cavin Street and Madison Avenue, and that he then ran toward a Red Cab, bearing the number 377, in which appellant was sitting under the wheel; that while running to the cab he threw the gun away, which the police recovered and which the witness Owens acknowledged as being his; that they took Owens and appellant to the Stein Filling Station, where Owens was identified as the man who robbed the station; that appellant and Owens were apprehended about 12:30 a. m.
A police officer testified that appellant was sitting in the front seat of Red Cab No. 377, and told him that the driver had gone to buy some whiskey; that he was cold and climbed into the front seat to get warm.
The attendant at the Stein Filling Station stated to a police officer, in the presence of appellant, that he had been robbed by Owens at the point of a gun, and the money was taken, and he was hit over the head with the gun.
The police were informed of the Stein holdup at 11:44 p. m., on December 9, 1948.
This court cannot weigh the evidence, but must determine whether there is...
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State v. Sims
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