Thompson v. State

• Decision Date: 07 May 1973
• Docket Number: No. 3--1172A87,3--1172A87
• Citation: 295 N.E.2d 630,156 Ind.App. 154
• Parties: David THOMPSON, Defendant-Appelalnt, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 630

295 N.E.2d 630

156 Ind.App. 154

David THOMPSON, Defendant-Appelalnt, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--1172A87.

Court of Appeals of Indiana, Third District.

May 7, 1973.

Eugene N. Chipman, Plymouth, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., John Meyers, Deputy Atty. Gen., for plaintiff-appellee.

SHARP, Judge.

The Appellant was charged by way of affidavit with the crime of theft in knowingly, unlawfully and feloniously obtaining and exerting unauthorized control over the property of one Terry Nelson, to-wit: one 12 gauge pump Western Field Shotgun, Serial No. 45034, said property being of a value of less than One Hundred Dollars and intending to deprive said Terry Nelson permanently of the use and benefit of said property. Said offense was alleged in the affidavit to have occurred on the 25th of October, 1971 in Marshall County, State of Indiana. The case was tried before a jury which found the Appellant guilty. Upon such finding of guilt the Appellant was fined in the sum of $50.00 and sentenced to the custody of the Department of Corrections of the State of Indiana for an indeterminate period from one to five years with the recommendation that he be committed to the Indiana Youth Center.

The sole contention of the Appellant here is that said jury verdict was not supported by sufficient evidence and was contrary to law because of the failure to sufficiently prove venue in Marshall County, Indiana.

The evidence must be considered in the light most favorable to the State of Indiana to determine whether or not venue was sufficiently proved. This evidence discloses that on October 25, 1971 two teenagers who resided in Culver, Marshall County, Indiana, ages 13 and 15 respectively, were hunting on the property owned by one of their grandparents, namely, Burl Briggs, R#3, Plymouth, Indiana. The farm in question is located on 17th Road between Queen and Redwood. On this date at approximately noon, a 1965 Mustang convertible containing the Appellant and Pete Green was seen by these two teenage boys. At this time these two teenage boys were on 11th Road, between Queen and Redwood, which according to one of them, was behind his grandfather's farm no more than two miles. The driver of the automobile in which the Appellant was then located drove past these two boys, turned around, proceeded back, stopped, and asked one of them if he wanted a ride. At this point the Appellant got out of the car and asked the other boy what he was hunting. Pete Green then grabbed the rifle from Terry Nelson's hand and said 'Thanks for the gun, kid', and both he and the Appellant then drove off. The boys got the license number, went to a nearby farm house located at Olive Trail and 11th Road where Terry Nelson called his grandfather.

Harvey E. Phillips, Sheriff of Marshall County, Indiana, was then summoned to the McCreary residence. Sheriff Phillips testified in part as follows:

'Q. Harvey, calling you attention to Cotober 25, 1971, did you investigate a report of a theft down on 11th Road, Marshall County?

A. I did.

Q. Specifically, where did you go?

A. I went out on what is known as Olive Trail to 11th Road, turned and went direct west to the McCreary residence--first house after you pass Queen Road on the south side.' (emphasis added)

The Sheriff obtained a description of the rifle, the license number and the car. The Deputy Sheriff of Marshall County, Indiana then arrested the Appellant at his home in Polk Township in Marshall County, Indiana between 5 and 6 P.M. on October 25, 1971. After his arrest, Appellant implicated the driver of his car, namely, Pete Green, and was told that Green had the rifle at his home in Plymouth, Indiana. The rifle was retrieved by the Marshall County Sheriff and his Deputy from Green's residence.

In Johnson v. State, 236 Ind. 509, 511, 141 N.E.2d 444, 445 (1957), a unanimous Supreme Court, speaking through Judge Bobbitt, stated:

'First: Venue must be proven to sus tain a conviction; Strickland v. State (1909), 171 Ind. 642, 645, 87 N.E. 12; however, no more direct...