Smithhart v. State, 270S29

• Decision Date: 18 June 1971
• Docket Number: No. 270S29,270S29
• Citation: 256 Ind. 533,270 N.E.2d 740
• Parties: Melvin Mathew SMITHHART, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 740

270 N.E.2d 740

256 Ind. 533

Melvin Mathew SMITHHART, Appellant, v. STATE of Indiana, Appellee.

No. 270S29.

Supreme Court of Indiana.

June 18, 1971.

Malcolm G. Montgomery, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, R. Michael Bruney, Deputy Atty. Gen., for appellee.

DeBRULER, Judge.

This is an appeal from a conviction in the Posey Circuit Court. Appellant was charged by affidavit with the crime of first degree burglary. Trial was had by jury and the appellant was convicted of entering a house to commit a felony, a lesser-included offense to the charge.

Appellant first alleges that the verdict of the jury is not supported by sufficient evidence. In reviewing the allegation of insufficient evidence this Court will not weigh the evidence nor resolve questions of credibility of witnesses, but will look to that evidence and the reasonable inferences therefrom which support the verdict of the jury. Asher v. State (1969), Ind., 244 N.E.2d 89. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which the trier-of-fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Smith v. State (1970), Ind., 260 N.E.2d 558.

The evidence most favorable to the State may be summarized as follows: James Hancock, an admitted accomplice to the crime testified that on the morning of April 25, 1969, he and the appellant and one McDaniels were drinking in a room over a tavern in Evansville. At the behest of either the appellant or McDaniels the three men went to Mount Vernon. The appellant drove the car, a white Ford Station Wagon, which he claimed belonged to McDaniels and himself. The witness Hancock testified that he understood they were going to visit a friend of McDaniels. He further testified that they traveled a gravel road finally arriving shortly before noon at a 'big old white frame home'. He testified in some detail regarding the physical surroundings, gates, fence, barn, etc. Upon their arrival McDaniels broke and entered the house by ripping a screen on the rear porch. McDaniels then came to the back door and handed a T.V. set to Hancock and carried another T.V. set to the car himself. When Hancock placed the T.V. set in the car he noticed a chain saw on the floor board which he claimed must have been put there by the appellant since McDaniels had not yet left the house. The three men then left the scene with the chain saw and the two T.V. sets in the car. About a mile from the scene they had a flat tire but continued on into Mount Vernon 'on the rim'. They parked the car on a side street and the appellant and McDaniels went to a service station and bought a wheel and tire. When the wheel would not fit the car they 'had to go get another one'. After affixing the new wheel and tire they 'drove around and left the jack' and returned to the tavern in Evansville. Shortly thereafter McDaniels and the appellant left, apparently with the stolen goods.

Sheriff Buchanan testified that he was called to the residence of Paul Schnieder in rural Posey County at approximately 12:30 on the day of April 25, 1969. Arriving there he found that forcible entry had been made by cutting of a screen on a porch to the home.

Paul Schnieder testified that his wife had called him on that day to inform him that their home had been broken into and thereafter he notified the Sheriff. He further testified as to the manner of breaking, by tearing a screen on the porch and that two T.V. sets and a chain saw were stolen, the value of which was approximately $375.00. The chain saw had been sitting under one of the stolen T.V. sets. He further testified that while returning home after his wife's call he noticed, about a mile from his house, that pieces of tire were laying about the road where someone had been driving on a flat tire.

Eldon Upshaw, Mount Vernon service station owner and John Stallings, a station attendant also testified for the State. The cumulative effect of their testimony was that two men entered the station on the day in question and purchased a wheel and a tire for a Ford. They also borrowed a jack on which they left a $5.00 deposit. They returned shortly to get a different wheel since the first one did not fit. They later returned the jack and recovered their deposit.

Appellant contends that the evidence is insufficient in that it fails to show that he did in fact enter the house, such entry being a necessary element to the crime. Upon cross-examination the chief prosecuting witness, the only eye-witness, accomplice Hancock admitted that he had not seen the appellant enter or leave the house. A written statement to the contrary had been given by the accomplice-witness and this statement was admitted to evidence, perhaps improperly, but without objection. However, we need not consider here the content of that statement to dispose of this issue.

Indiana's accessory before the fact statute (I.C.1971, 35--1--29--1, being Burns § 9--102), reads as follows:

'Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command, or otherwise procure a felony to be committed, may be charged by indictment, or affidavit, tried and convicted in the same manner as if he were a...