Tom v. State, 1073S206

CourtSupreme Court of Indiana
Citation39 Ind.Dec. 384,302 N.E.2d 494,261 Ind. 295
Docket NumberNo. 1073S206,1073S206
PartiesCarl TOM, Appellant, v. STATE of Indiana, Appellee.
Decision Date31 October 1973

Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Anthony J. Metz, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

This case is before us on petition to transfer from the Court of Appeals, Division Two. The decision and opinion of that Court, affirming the judgment of the trial court, appears in 297 N.E.2d 479. The petition to transfer is now granted.

Defendant-Appellant was convicted of theft (vehicle taking). His appeal raises the sole issue of the sufficiency of the evidence. A black 1964 model Thunderbird owned by one Harvey was stolen in July, 1970 from a lot of a used car dealer to whom it had been consigned for sale. He never saw it again. The theft was reported to the police, and Officer Wright investigated but did not find it at that time. On January 15, 1971, during another investigation, Officer Wright arrested one Hickman. Hickman had in his possession a gold 1964 Thunderbird. Wright observed that the serial number on the Thunerbird was indicative of a 1964 Ford rather than of a Thunderbird. In the automobile, he found a certificate of title for a 1964 Ford, and the serial number thereon was the same as that on the Thunderbird, indicating that the number on the Thunderbird had been altered. The name on the title certificate was that of the defendant, 'Carl Tom.'

On the following day Wright checked the frame number on the gold Thunderbird and found that it matched the serial number for the black Thunderbird which Harvey had reported stolen. The defendant was arrested approximately January 21, 1971, and during the investigation, he told Officer Wright that he had once owned a 1964 Ford but that it had been wrecked and that he had sold it to a boy who wanted it only for the engine, that he did not know where the title certificate was but that he had not given it to Hickman. Hickman was arrested approximately January 15, 1971. He was convicted of theft of the Harvey Thunderbird and given a suspended sentence.

Hickman was called as a witness for the State. He testified that he bought the car from one Reed but that he took from Reed the aforementioned certificate of title bearing the defendant's name. He also testified that he knew the defendant, that one year earlier, in January of 1970, the defendant had brought a black Thunderbird to his body shop and had it painted white and that the Thunderbird which he purchased from Reed was white at the time he received it.

Upon cross-examination, Hickman appeared to regard the automobile that Tom had had painted in January of 1970 as one and the same vehicle that he had received from Reed in September or October of 1970. He stated with apparent reference to that vehicle, '* * * the next time I saw the automobile--it belonged, for what I knew, to Mr. Reed.' Clearly, if the defendant had possession of the vehicle subsequent to its theft and had it painted, this coupled with the alteration of the serial number to match his certificate of title would be very convincing evidence of his guilt. However, there is no evidence from which it can be found or inferred that the defendant was in possession of the stolen vehicle at the time of the theft or at any time subsequent thereto.

The trier of the facts is the judge of the weight of the evidence and the credibility of the witnesses. Coleman v. State (1971), Ind., 275 N.E.2d 786; Fuller v. State (1971), Ind., 271 N.E.2d 720; Sanchez v. State (1971), 256 Ind. 140, 267 N.E.2d 374. However, testimony must be accepted in context or rejected. If it is to be believed from the evidence that the defendant had the witness paint a black vehicle white, it must also be believed that he did so at or about the time testified to by the witness, as there is no evidence that he did so at any other time. The witness' testimony was clear that the defendant brought a black Thunderbird automobile to him in January of 1970 and had it painted white. It is also apparent that the witness was of the opinion that this was one and the same vehicle that he had purchased from Reed. This could not have been, if it was Mr. Harvey's vehicle, because the latter had not been stolen until approximately seven months later in July, 1970.

To accept Hickman's testimony as supportive of the conviction, it is necessary, first to believe that the defendant had him...

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11 cases
  • Vernon Fire & Cas. Ins. Co. v. Sharp, 676S181
    • United States
    • Indiana Supreme Court of Indiana
    • June 10, 1976
    ...Court to disregard them. And in making the determination of reasonableness the evidence must be viewed in context. Tom v. State (1973), 261 Ind. 295, 302 N.E.2d 494. Bits and pieces of evidence may not be isolated out of context and each given its most devastating force, which is but anothe......
  • Clayton v. State, 2--476A165
    • United States
    • Indiana Court of Appeals of Indiana
    • September 22, 1976
    ...establishes only a suspicion of guilt is insufficient to meet the State's burden of proof beyond a reasonable doubt. Tom v. State (1973), 261 Ind. 295, 302 N.E.2d 494; Nichols v. State, The evidence in this case establishes at best a mere suspicion of guilt. The State hypothesizes that it i......
  • Jordan v. State, 2-1180A373
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1981
    ...must be such as will support the essential conclusions beyond a reasonable doubt. Lottie v. State, supra, citing Tom v. State, (1973) 261 Ind. 295, 302 N.E.2d 494, Spears v. State, (1970) 253 Ind. 370, 254 N.E.2d 203, Vuncannon v. State, (1970) 254 Ind. 206, 258 N.E.2d 639, Easton v. State,......
  • Tewell v. State, 974S170
    • United States
    • Indiana Supreme Court of Indiana
    • January 19, 1976 determine that law for yourselves, but not make up your own law.' Error is predicated upon the statement in Tom v. State (1973), Ind., 302 N.E.2d 494 at 495 that, while the trier of facts is the judge of the weight of the evidence and the credibility of the witnesses, 'testimony must be ......
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