Stone v. State, s. 667S28

• Decision Date: 23 September 1968
• Docket Number: Nos. 667S28,667S29,s. 667S28
• Citation: 15 Ind.Dec. 346,240 N.E.2d 487,251 Ind. 198
• Parties: Donald L. STONE, Jr., Appellant, v. STATE of Indiana, Appellee. Richard L. RADFORD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 487

240 N.E.2d 487

251 Ind. 198

Donald L. STONE, Jr., Appellant, v. STATE of Indiana, Appellee.

Richard L. RADFORD, Appellant, v. STATE of Indiana, Appellee.

Nos. 667S28, 667S29.

Supreme Court of Indiana.

Sept. 23, 1968.

Rehearing Denied Nov. 1, 1968.

Frank P. Huse, Jr., Indianapolis, Fred Graf, Indianapolis, of counsel, for Donald Stone, Jr.

David B. Caldwell, Indianapolis, Fred Graf, Indianapolis, of counsel, for Richard L. Radford.

John J. Dillon, Atty. Gen., Duejean C. Garrett, Rex P. Killian, Deputy Attys. Gen., for State of Indiana.

HUNTER, Judge.

Appellants were charged with the commission of a robbery under Ind.Ann.Stat. § 10--4101 (1956 Repl.). Pursuant to a jury verdict, they were convicted and sentenced to imprisonment for ten to twenty-five years. The only error assigned is the overruling of appellants' motions for a new trial, and the motions for a new trial were based on two contentions:

'(1) That the verdict of the jury is not sustained by sufficient evidence, and

(2) That the verdict of the jury is contrary to law.'

The appellants' assignment of error in context of their motions for a new trial present only a question of the sufficiency of the evidence. Therefore, this Court may only look to the evidence most favorable to the State in the determination of this appeal. Capps v. State (1967), Ind., 229 N.E.2d 794.

Thus, the evidence, when viewed most favorably to the State, may be summarized as follows: At approximately 8:30 P.M. on December 29, 1966, four men entered the Family Liquor Store located at 1308 Oliver Avenue, Indianapolis, Indiana, which was owned and operated by Julius and Johanna Cohen. The men huddled near the front door for a few minutes. Two of the men then approached Mr. Cohen and displayed a pistol; a third man, later identified by both Mr. and Mrs. Cohen as appellant Stone, approached Mrs. Cohen and displayed a silver gun; and the fourth man, later identified by both Mr. and Mrs. Cohen as appellant Radford, remained near the door some fifteen feet away. One of the men took approximately one thousand, seven hundred seventy-two dollars ($1,172) in ten, five and one dollar bills, all of which belonged to Mr. and Mrs. Cohen as owners of the Family Liquor Store.

At approximately 8:41 P.M., having been alerted of the robbery, Officer Robert Potter of the Indianapolis Police Department spotted appellants and a third subject near Stone's automobile about three-quarters of a mile from the scene of the robbery. Officer Potter ordered them to stop, but appellant Stone proceeded to enter his car, backed up and began to pull away. Officer Potter pulled his squad car alongside Stone's car to prevent them from leaving.

In searching the car, Officer Potter discovered two pistols behind the center arm rest, one of which was identified by Mrs. Cohen as being the silver gun which was held on her during the robbery. Officer Nicholas Chris found a bundle of money totalling four hundred fifteen dollars ($415) under the front seat of the car.

At approximately 9:10 P.M. of the same evening, the three subjects were returned to the scene of the robbery, and the Cohens...