Sutton v. State, 970S202

• Decision Date: 13 March 1972
• Docket Number: No. 970S202,970S202
• Citation: 258 Ind. 175,279 N.E.2d 802
• Parties: Robby Ray SUTTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 802

279 N.E.2d 802

258 Ind. 175

Robby Ray SUTTON, Appellant, v. STATE of Indiana, Appellee.

No. 970S202.

Supreme Court of Indiana.

March 13, 1972.

William C. Whitman, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., for appellee.

DeBRULER, Justice.

This is an appeal from a conviction for theft in a trial without jury in the St. Joseph Superior Court. Appellant was sentenced to one to ten years in prison.

Appellant's sole contention is that there was insufficient evidence to sustain the trial court finding of guilty. 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 finding of the trial court. 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 affidavit read as follows:

'That on or about the 5th day of December, 1969, at and in the County of St. Joseph, State of Indiana, one BOBBY RAY SUTTON did then and there, commit the crime of theft in that he did then and there knowingly, unlawfully and feloniously, without consent of the owner, obtain and exert unauthorized control over the following property, to-wit: one (1) Olympia Typewriter, Serial No. 72188364, valued at approximately Two Hundred Sixty ($260.00) Dollars owned by the MISHAWAKA METAL STAMPING and did then and thereby intend to deprive said owner permanently of the use and benefit of said property, contrary to the form of Statute in such cases made and provided and against the peace and dignity of the State of Indiana.'

Under this affidavit appellee had the burden of proving beyond a reasonable doubt that appellant: (1) Knowingly, (2) obtained or exerted control over the named typewriter, (3) without authorization of the Mishawaka Metal Stamping, (4) with intent to deprive the owner permanently of the use or benefit of the property. The evidence supporting the trial court finding is as follows:

James Smith testified that he was President of Mishawaka Metal Stamping Corporation in South Bend. On December 5, 1969, he closed the plant sometime between 5:15 p.m. and 6:00 p.m. The following morning at 8:00 it was discovered the plant had been broken into and a new typewriter and adding machine had been stolen since the plant had been closed. The typewriter was worth $260.00 new.

Winifred Bays testified that he was the manager of the Rose Bowling Lanes in South Bend. At approximately 9:00 p.m. on December 5, 1969, the appellant offered to sell Bays a typewriter. The two men got in Bays' car and drove one block to a car parked beside Butch's Tavern. Appellant took the typewriter out of the car and showed it to Bays who loaned appellant $20.00 on it until appellant could pay it back. Appellant put the typewriter in Bays' car. There was also an adding machine in the car and although Bays did not give any money for it, he permitted appellant to place it in Bays' car temporarily. The typewriter was the one stolen from the stamping plant and it was recovered from Bays the morning of December 6, 1969.

Appellant's wife testified that after supper on December 5, 1969, between 6 and 7 p.m., she and appellant walked from their home downtown to Butch's Tavern in South Bend. Appellant played pool for awhile and after about an hour they left Butch's and walked to the Tropicana Bar one block away. Mrs. Sutton had been with appellant all the time since they left their home. Mrs. Sutton was not with appellant all the time at the Tropicana and she soon left with a girlfriend to go to a different bar close by. She was only with appellant sporadically the rest of the evening.

Appellant testified that on the evening of December 5, 1969, he won some money playing pool from a stranger whose name he did not know in the Tropicana Bar in South Bend. The man did not have enough money to satisfy the debt but he said he had a typewriter and adding machine he would sell. Appellant testified he offered to help the man by seeing if Bays would take them. Appellant admitted he gave the typewriter to Bays for around $23.00, five of which appellant kept himself giving the remainder to the stranger in the bar. The man told appellant where the unlocked car was parked and described it so appellant and Bays could find the machine.

Indiana Code 1971, 35--17--5--13, being Burns § 10--3040(10), reads:

'(10) 'Obtains or exerts control over property' includes but is...