Thomas v. State, No. 370S63

Docket NºNo. 370S63
Citation256 Ind. 309, 268 N.E.2d 609, 25 Ind.Dec. 321
Case DateApril 21, 1971

Page 609

268 N.E.2d 609
256 Ind. 309
William THOMAS, Appellant,
v.
STATE of Indiana, Appellee.
No. 370S63.
Supreme Court of Indiana.
April 21, 1971.

[256 Ind. 310] Frank E. Spencer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

This is an appeal of a criminal conviction.

Appellant was charged by grand jury indictment with the crime of second degree murder and with a violation of the 1935 Firearms Act, Ind.App.Stat. § 10--4701 et seq. (1956 Repl.)

After a trial by jury he was adjudged guilty of manslaughter, which finding is not challenged here, and of carrying a concealed weapon under such circumstances as to violate the 1935 Firearms Act.

Page 610

It is the latter holding that is challenged on appeal by way of assertion of certain portions of the amended motion for new trial and the assignment of errors.

Specifically it is contended that there was, as a matter of law, a lack of sufficient evidence to establish material elements of the offense--to wit, that appellant had in his possession a pistol as that term is defined by the act and that he did not have a license to carry a pistol.

We begin by noting that Ind.Ann.Stat. § 10--4736 provides:

'No person shall carry a pistol in any vehicle or on or about his person, except in his place of abode or fixed place of business, without a license therefore as hereinafter provided.'

Appellant, although not admitting the truth in fact thereof, concedes that there exists sufficient evidence to establish in law that

[256 Ind. 311] (1) he was carrying something

(2) on or about his person

(3) in a place not his home or fixed place of business.

The elements contended to be lacking are a showing that he carried a 'pistol' as defined in the act and that he did not have a license to carry a pistol.

Ind.Ann.Stat. § 10--4734 (1956 Repl.) defines pistol as

'* * * any firearm with barrel less than twelve (12) inches in length'.

Ind.Ann.Stat. § 10--4738 (1956 Repl.) provides the procedural method for securing a license.

Before we may judge the credence of appellant's contentions we must examine the evidence. In doing so we consider only that evidence most favorable to the state and all reasonable inferences to be drawn therefrom. Sampson v. State (1968), 250 Ind. 625, 237 N.E.2d 254. We will not weigh the evidence or judge the credibility of witnesses. Kirk v. State (1970), Ind., 257 N.E.2d 304. We must sustain the conviction if there is any evidence of probative value to support the facts essential to it. Powell v. State (1970), Ind., 258 N.E.2d 633.

The evidence most favorable to the state reveals that a handgun was introduced at trial. It was identified as strongly resembling the one appellant had on the night of the alleged crime. Also introduced was a photograph of the weapon as it was found. It lay in a recess in the top of a stereo console. The top to the unit which opened up and away from one standing in front of it is shown in the up position in the photograph. In the front right hand corner of the well containing the unit's controls the gun is clearly visible. The handle of the firearm faces the camera and the barrel is pointing away from it. The gun is lying diagonally in the corner of the stereo unit.

An objection was made to the introduction of the pistol on the basis that it had not been properly identified but the objection[256 Ind. 312] was overruled. Appellant notes in...

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34 practice notes
  • Kindred v. State, No. 285S67
    • United States
    • Indiana Supreme Court of Indiana
    • June 8, 1988
    ...may learn through viewing an exhibit what they might have learned through listening to testimony describing it. Thomas v. State (1971), 256 Ind. 309, 268 N.E.2d 609. Admission of physical evidence is governed by the same rules of relevancy and materiality governing admission of testimonial ......
  • Miresso v. State, No. 2--873A189
    • United States
    • Indiana Court of Appeals of Indiana
    • February 20, 1975
    ...89; Langley v. State (1971), 256 Ind. 199, 267 N.E.2d 538; Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133; Thomas v. State (1971), 256 Ind. 309, 268 N.E.2d 609; Cody v. State (1973), [163 Ind.App. 233] Ind.App., 304 N.E.2d 820; Worrell v. State (1930), 91 Ind.App. 259, 171 N.E. Also, h......
  • Bimbow v. State, No. 2--873A187
    • United States
    • August 29, 1974
    ...See also, Tomlin v. State (1972), Ind., 283 N.E.2d 363; Valentine v. State (1971), 257 Ind. 197, 273 N.E.2d 543; Thomas v. State (1971), 256 Ind. 309, 268 N.E.2d As previously indicated, the record discloses no proffer of evidence by Bimbow to prove he was insane either at the time of the o......
  • Smith v. State, No. 2--773A151
    • United States
    • Indiana Court of Appeals of Indiana
    • September 12, 1974
    ...urged on appeal, we need not pass on the validity of the argument new presented.' (emphasis supplied) See also, Thomas v. State (1971), 256 Ind. 309, 268 N.E.2d 609; Hardin v. State (1970), 254 Ind. 56, 257 N.E.2d 671; Moore v. State (1970), 254 Ind. 23, 256 N.E.2d 907; Johnson v. State (19......
  • Request a trial to view additional results
34 cases
  • Kindred v. State, No. 285S67
    • United States
    • Indiana Supreme Court of Indiana
    • June 8, 1988
    ...may learn through viewing an exhibit what they might have learned through listening to testimony describing it. Thomas v. State (1971), 256 Ind. 309, 268 N.E.2d 609. Admission of physical evidence is governed by the same rules of relevancy and materiality governing admission of testimonial ......
  • Miresso v. State, No. 2--873A189
    • United States
    • Indiana Court of Appeals of Indiana
    • February 20, 1975
    ...89; Langley v. State (1971), 256 Ind. 199, 267 N.E.2d 538; Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133; Thomas v. State (1971), 256 Ind. 309, 268 N.E.2d 609; Cody v. State (1973), [163 Ind.App. 233] Ind.App., 304 N.E.2d 820; Worrell v. State (1930), 91 Ind.App. 259, 171 N.E. Also, h......
  • Bimbow v. State, No. 2--873A187
    • United States
    • August 29, 1974
    ...See also, Tomlin v. State (1972), Ind., 283 N.E.2d 363; Valentine v. State (1971), 257 Ind. 197, 273 N.E.2d 543; Thomas v. State (1971), 256 Ind. 309, 268 N.E.2d As previously indicated, the record discloses no proffer of evidence by Bimbow to prove he was insane either at the time of the o......
  • Smith v. State, No. 2--773A151
    • United States
    • Indiana Court of Appeals of Indiana
    • September 12, 1974
    ...urged on appeal, we need not pass on the validity of the argument new presented.' (emphasis supplied) See also, Thomas v. State (1971), 256 Ind. 309, 268 N.E.2d 609; Hardin v. State (1970), 254 Ind. 56, 257 N.E.2d 671; Moore v. State (1970), 254 Ind. 23, 256 N.E.2d 907; Johnson v. State (19......
  • Request a trial to view additional results

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