Tinsley v. State, No. 1271S347

Docket NºNo. 1271S347
Citation298 N.E.2d 429, 260 Ind. 577
Case DateJuly 05, 1973
CourtSupreme Court of Indiana

Page 429

298 N.E.2d 429
260 Ind. 577
Buford TINSLEY and Johnnie Tinsley, Appellants,
v.
STATE of Indiana, Appellee.
No. 1271S347.
Supreme Court of Indiana.
July 5, 1973.

[260 Ind. 578]

Page 430

Donald L. Adams, Adams, Ecklund & Frutkin, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.

DeBRULER, Justice.

This is an appeal from a conviction of co-defendants, John and Buford Tinsley, for the crime of first degree burglary after a trial without a jury in the Marion County Criminal Court, Saul Rabb presiding. A direct appeal was taken by both defendants alleging that the evidence introduced at trial was insufficient as a matter of law to sustain their convictions. Some eleven months later a Belated Motion to Correct Errors was filed, under PC. Rule 2, on behalf of Buford Tinsley alleging that the trial judge had evidenced a bias against appellant Buford Tinsley, by a remark the judge made during trial and also that he was incompetent to stand trial at the time of his conviction. The trial judge denied the motion without a hearing, and appellant, Buford Tinsley, has filed a belated appeal contesting the denial of the motion and failure to hold a hearing on the motion.

On Sunday, February 21, 1971, Mrs. Mary Sturdivant left her home at about 10:15 a.m. in order to attend Church. She testified that when she left the doors were locked and the windows closed. When she returned at about 1:30 p.m. she found that her front door had been broken in and the lock broken off. She also found that her house had been ransacked and her television set was missing. A police officer also testified that the front door of the Sturdivant residence had been broken in and the house had been ransacked.

Arthur Walton testified that he lived next door to Mrs. [260 Ind. 579] Sturdivant. At about 11:30 a.m. that day he was standing at the back door of his house when he saw both appellants carrying boxes out of a shed in the Sturdivant backyard. They put several boxes in a car and drove off. Sometime later they returned and parked in the alley behind Mrs. Sturdivant's house. Walton testified that he continued to observe appellants and saw a third man come out of Mrs. Sturdivant's house and give a television set to appellants who were waiting in the alley. Both appellants carried the set to the car and drove away. The trial court found both appellants guilty under the theory that they were accessories to the burglary of Mrs. Sturdivant's house.

Page 431

First degree burglary is defined in the affidavit in this trial and in our statutes (I.C.1971, 35--13--4--4, being Burns § 10--701) as (1) a breaking and entering into a dwelling place, (2) with intent to commit a theft therein. The testimony of Mrs. Sturdivant concerning the broken lock and door clearly established a breaking and entering into her dwelling place. Her further testimony concerning the missing television, along with Walton's testimony regarding the removal of the set from the house, demonstrates the intent to commit a theft as defined in I.C.1971, 35--17--5--3, being Burns § 10--3030.

Appellants contend that this evidence is insufficient because, although it may establish a burglary, it fails to establish that they in fact entered the house. As pointed out above, however, the trial court found appellants guilty under Indiana's accessory statute (I.C.1971, 35--1--29--1, being Burns § 9--102) and as we have stated in the past:

'It is clear that under this statute (9--102) the appellant could be convicted as a principle if he aided or abetted the breaking and entering of the home without regard to whether he himself had entered the home.' Smithhart v. State (1971), Ind., 270 N.E.2d 740.

Walton's testimony shows that both appellants were on the scene of the burglary and that the forcible entry into the [260 Ind. 580] house was clearly visible. Appellants were familiar with the neighborhood. They were at the site for considerable length of time and were seen removing boxes from a shed by the house, and a third man was seen handing the television over the fence to them at the rear of the house, after which appellants loaded it into a car. Such evidence is sufficient to establish that they were accessories to the burglary of that home.

Appellants urge, however, that we should discount the testimony given by Arthur Walton because it was brought out in the course of his cross examination that about a year before this incident Walton had been discovered stealing furniture from a nearby house in which appellant, Johnnie Tinsley, was then living, and that Walton had thrown several rocks through Tinsley's window. Appellants contend that this apparent bias on Walton's part coupled with the alibi testimony of the appellants' brother and mother mandates us to discount the witness Walton's testimony.

This, of course, would require us to resolve uestions of credibility and, as this Court has said enumerable times, we will not weigh evidence nor will we resolve questions concerning the credibility of witnesses, but will look to that evidence and the reasonable inferences therefrom which support the finding of the trial court. McFarland v. State (1973), Ind., 295 N.E.2d 809. A 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 appellants were guilty beyond a reasonable doubt....

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27 practice notes
  • Edwards v. State, No. 49S02-0705-CR-202.
    • United States
    • Indiana Supreme Court of Indiana
    • March 17, 2009
    ...was "not appellant's mental state in May of 1959, but his ability to stand trial in April of that year"); Tinsley v. State, 260 Ind. 577, 585, 298 N.E.2d 429, 434 (1973) ("The ultimate and relevant issue is not the state of Tinsley's mental health in 1956, but his abilities t......
  • Timberlake v. State, No. 49S00-9804-PD-252.
    • United States
    • Indiana Supreme Court of Indiana
    • August 20, 2001
    ...S.Ct. 2052, 80 L.Ed.2d 674 (1984). For the same reason, Timberlake does not fall into the unusual category recognized in Tinsley v. State, 260 Ind. 577, 298 N.E.2d 429 (1973). In Tinsley, this Court ordered an evidentiary hearing on the issue of defendant's competency. The defendant first c......
  • Berwanger v. State, No. 2-773A154
    • United States
    • Indiana Court of Appeals of Indiana
    • March 11, 1974
    ...when it did not conduct a hearing on the matter.' See also Evans v. State (1973), Ind., 300 N.E.2d 882; Tinsley v. State (1973), Ind., 298 N.E.2d 429; Sims v. Lane (1969 7th Cir.), 411 F.2d 661, cert. den., 396 U.S. 943, 90 S.Ct. 378, 24 L.Ed.2d 244, a federal habeas corpus follow-up to Sim......
  • Smith v. State, No. 3--275A19
    • United States
    • Indiana Court of Appeals of Indiana
    • December 30, 1975
    ...from the store to Smith's car was sufficient to establish that she aided and abetted commission of the theft. See Tinsley v. State (1973), 260 Ind. 577, 298 N.E.2d 429, where substantially the same evidence was sufficient to sustain a conviction of being an accessory to There was no error i......
  • Request a trial to view additional results
27 cases
  • Edwards v. State, No. 49S02-0705-CR-202.
    • United States
    • Indiana Supreme Court of Indiana
    • March 17, 2009
    ...was "not appellant's mental state in May of 1959, but his ability to stand trial in April of that year"); Tinsley v. State, 260 Ind. 577, 585, 298 N.E.2d 429, 434 (1973) ("The ultimate and relevant issue is not the state of Tinsley's mental health in 1956, but his abilities t......
  • Timberlake v. State, No. 49S00-9804-PD-252.
    • United States
    • Indiana Supreme Court of Indiana
    • August 20, 2001
    ...S.Ct. 2052, 80 L.Ed.2d 674 (1984). For the same reason, Timberlake does not fall into the unusual category recognized in Tinsley v. State, 260 Ind. 577, 298 N.E.2d 429 (1973). In Tinsley, this Court ordered an evidentiary hearing on the issue of defendant's competency. The defendant first c......
  • Berwanger v. State, No. 2-773A154
    • United States
    • Indiana Court of Appeals of Indiana
    • March 11, 1974
    ...when it did not conduct a hearing on the matter.' See also Evans v. State (1973), Ind., 300 N.E.2d 882; Tinsley v. State (1973), Ind., 298 N.E.2d 429; Sims v. Lane (1969 7th Cir.), 411 F.2d 661, cert. den., 396 U.S. 943, 90 S.Ct. 378, 24 L.Ed.2d 244, a federal habeas corpus follow-up to Sim......
  • Smith v. State, No. 3--275A19
    • United States
    • Indiana Court of Appeals of Indiana
    • December 30, 1975
    ...from the store to Smith's car was sufficient to establish that she aided and abetted commission of the theft. See Tinsley v. State (1973), 260 Ind. 577, 298 N.E.2d 429, where substantially the same evidence was sufficient to sustain a conviction of being an accessory to There was no error i......
  • Request a trial to view additional results

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