Todd v. State

• Decision Date: 04 December 1951
• Docket Number: No. 28672,28672
• Citation: 101 N.E.2d 922,230 Ind. 85
• Parties: TODD v. STATE.
• Court: Indiana Supreme Court

Page 922

101 N.E.2d 922

230 Ind. 85

TODD v. STATE.

No. 28672.

Supreme Court of Indiana.

Dec. 4, 1951.

Ernest E. Owens, Indianapolis, for appellant.

J. Emmett McManamon, Atty. Gen., Merl M. Wall, George W. Hand, Deputies, for appellee.

BOBBITT, Judge.

Appellant was prosecuted by affidavit charging automobile banditry under the Acts of 1929, ch. 54, § 3, being § 10-4710, Burns' Revised Statutes, 1942, Replacement. To this affidavit appellant entered a plea of not guilty. He was tried before a jury which rendered a verdict of guilty and that he be imprisoned in the state prison for a period of ten years. The court found that his true age was thirty-eight years, and sentenced him to serve a determinate period of ten years in the Indiana State Prison. From such judgment this appeal is taken.

Seven separate grounds are advanced by appellant in his motion for a new trial among which are (3) the trial court erred in overruling appellant's motion for a directed verdict of acquittal at the close of the state's case; (6) that the verdict of the jury is not sustained by sufficient evidence. These present the principal question in this case.

The affidavit upon which appellant was tried and convicted alleged that on or about the 20th day of September, 1947, defendant unlawfully attempted to commit and did commit a felony, by fraudulently and knowingly, publishing, passing, and delivering to one Herbert E. Anderson a forged and counterfeit check in the sum of $57.30 with the intent to defraud said Anderson, and alleging further 'that the said Ralph Todd, did have at the time at, on and near the said premises an automobile or other self-moving conveyance, by the use of which the said Ralph Todd did escape, attempt or escape and intend to escape, contrary to the form of the statute in such case made and provided.'

Said § 10-4710 provides: 'If any person or persons shall commit or attempt to commit a felony, having at the time on or near the premises where such felony is attempted or committed, an automobile, motorcycle, airplane, or other self-moving conveyance, by the use of which he or they escape, attempt to escape or intend to escape, or having attempted or committed such felony, he or they seize an automobile, motorcycle, airplane, or other self- moving conveyance, by the use of which he or they escape or attempt to escape, he, they and each of them shall be guilty of automobile banditry, and, upon conviction thereof, shall be imprisoned in the state prison for any determinate period not less than ten (10) years nor more than twentyfive (25) years.'

This court will not weigh the evidence when its sufficiency is questioned on appeal but will examine the record to see if there is any evidence, or any reasonable inference which may be drawn from the evidence, which would sustain the verdict of the jury or the decision of the trial court. Shacklett v. State, 1926, 197 Ind. 323, 150 N.E. 758; Osborn v. State, 1927, 199 Ind. 44, 154 N.E. 865; Erfman v. State, 1935, 207 Ind. 673, 194 N.E. 326; McAdams v. State, 1948, 226 Ind. 403, 81 N.E.2d 671.

We think the evidence sufficient to establish the crime of forgery. When we examine the record for the purpose of ascertaining whether there is sufficient evidence to sustain a conviction of automobile banditry, considering the evidence most favorable to appellee, we find that Herbert E. Anderson, as a witness for the state, testified that a previous witness called by the state, one Ruth Todd, gave him the check described in the affidavit on the 20th day of September, 1947 and, in return for said check, he gave her some groceries and meat and the balance between the cost of the groceries and meat in cash. He further testified that he did not see the defendant; that there was a gentleman in front of the store waiting for Ruth Todd, but he had no idea whether it was the defendant or someone else. One Clifford McCory, an officer for the Indiana state police, testified that sometime between the hours of 7:30 and 8 P.M. on September 20, 1947, at about a half mile south of the junction of State Road 50 and 31 he observed a vehicle being driven south; that he stopped the vehicle and found as occupants of the car appellant and a lady who later gave her name as Vera Clark; and that defendant was driving the automobile at the time. This witness further testified that Vera Clark was later identified as Ruth Todd; that he took the two occupants of the car to the Seymour state police headquarters and upon examination of the car found 'two sacks of groceries' in the rear of the car; that he made no examination as to what was in the sacks but noticed that it was a mixture of groceries.

Don Winn, another member of the State police force, testified for the state that he observed two sacks of groceries in the back seat of the car. He further testified, when asked by the prosecuting attorney if he recalled what, if anything, Ruth Todd said in a conversation at which the prosecuting attorney, Ruth Todd, Ralph Todd and himself were present on November 3, 1947, regarding the use of an automobile at the time she cashed the check in the City Meat Market, that she said that Ralph Todd drove the car.

One Byron L. Judd, a witness for the state, testified that he operated a grocery store in the city of Seymour, and that on the 20th day of September, 1947, a lady who represented herself as Vera Clark came into his store to buy some groceries and gave him a check in the amount of $58.60; that he followed her out of the store and saw her cross the street and start west. He then saw a person, whom he later identified as the appellant herein, follow her about a block down the street where he crossed the street, got into a car and drove down to the next corner where he picked her up. He further testified...