Wagner v. State, 30146
| Citation | 243 Ind. 570,188 N.E.2d 914 |
| Decision Date | 01 April 1963 |
| Docket Number | No. 30146,30146 |
| Parties | Wayne R. WAGNER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Edward V. Minczeski, South Bend, for appellant.
Edwin K. Steers, Atty. Gen., William D. ruckelshaus, Asst. Atty. Gen., Carl E. Van Dorn, Deputy Atty. Gen., for appellee.
Appellant was charged by affidavit with burglary in the second degree. He was tried by a jury and found guilty as charged. He was sentenced to the Indiana State Prison for a period of not less than two nor more than five years, and was disfranchised for a period of ten years.
Appellant was a resident of Mishawaka, Indiana, in October, 1960. This is a city in northern Indiana adjacent to the city of South Bend. At one time he worked for the Jewel Tea Company of South Bend for a period of five months, but quit two or three months before the alleged burglary. The Jewel Tea Company was a national concern, operating throughout the United States, selling merchandise at retail from house to house. In the metropolitan area of Mishawaka and South Bend it had eleven storerooms which were stocked with groceries, clothing, merchandise, miscellaneous articles, 'regular department store type of thing, handle a little bit of everything.' One of these stockrooms was located at 2217 West Bertrand Street in South Bend.
On the morning of October 14, 1960, a driver of a company truck, who operated from these premises, discovered that they had been broken into and entered. Certain items were missing and there was much disarray. Later, appellant and two other men were arrested and charged with the crime. The two others, being Ralph Wyatt and John Vermillion, pleaded guilty to the change. Vermillion had been sentenced and Wyatt was awaiting sentence at the time of trial.
Wyatt's testimony implicated appellant fully. At the trial, as a witness for the State, he related that all three of them got into Vermillion's car, after spending the evening at a tavern, stopped by Vermillion's home to pick up a tire tool, and then drove to the Bertrand Street address. Appellant broke the lock on the door of the stockroom with the tire tool. He and Wyatt went inside and carried out various boxes of merchandise which they put in the car. They drove to an empty house in Mishawaka, next door to appellant's cousin's house, where all three of them transported the boxes into the house. They parted, appellant going to bed in his cousin's house. Later on the in the day, Wyatt and appellant, together with Donald Fairchild, buried the merchandise by a creek after wrapping it in tarpaulin.
Vermillion testified that the three of them sat around in the tavern and drand beer until it closed. Then they got into his car and let appellant off at his girl friend's house, somewhere in Mishawaka or South Bend. Vermillion admitted that he and Wyatt drove on and took part in the robbery, although Vermillion did not help bury the merchandise. He said that after he had been apprehended and was at the police station, he 'probably' signed a statement which implicated appellant in the crime, but that he did not know what it was at the time. He gave a garbled account of signing it while drunk, not wanting to 'mess up' his probation. He said if he signed it and implicated appellant, he lied about it. This statement was not introduced in evidence.
Fairchild stated that he helped take the stolen items in his car from the empty house and assisted in burying them. He said they consisted of silverware, blankets and 'stuff like that.' There were also two pairs of trousers which he kept in his car for himself. He identified two ironing-board covers and a sheet which he said he saw at the creek where they were buried. He had pleaded guilty to receiving stolen goods and was awaiting sentence.
Appellant testified in his own defense, stating that he had been with Vermillion and Wyatt until 2:00 o'clock in the morning of October 14, 1960, but after they left the tavern he became sick and they let him out at his girl's house in Mishawaka. He could not arouse her, so he walked back to a place called the Burger Spot where he met his half-brother. After a fight, he left with some unknown fellows and vaguely remembers being at some people's house near Niles, Michigan. Then he returned to his cousin's home and went to bed. Later in the day he got up and admitted to assisting in burying the stolen boxes. He further testified that he had previously been in a fight with Wyatt at his cousin's house and had 'beat the tar out of him.' At the time he was on parole for second-degree burglary.
In argument, appellant's first specification of error is that the court erred in overruling his motion for new trial, which is based upon the grounds that the verdict is contrary to law and not sustained by sufficient evidence. As the grounds in this specification were similar, they were grouped together for argument. The contention is that there was no direct evidence in the record as to ownership of the goods allegedly stolen; that there was no clear evidence to indicate the merchandise was in fact the property of the Jewel Tea Company.
Evidence of ownership in a second-degree burglary case may be proven by circumstantial evidence. Rucker v. State (1948), 225 Ind. 636, 77 N.E.2d 355. The district manager testified that the burglarized stockroom was leased to the Jewel Tea Company. A driver-salesman who operated from those premises said the stock he used came from that stockroom and had been delivered there from Bennington, Illinois, in a truck driven by another employee of Jewel Tea Company. He identified an ironing-board pad and cover set which was a State's exhibit, being one of the items buried at the creek, as being similar to a set sold by the company, and pointed out that this particular set had the Jewel name and number, as well as his handwriting, on it. Other items found in Fairchild's car, such as sheets and sample box of clothing, were identified as the same type of merchandise handled by the company and bore the Jewel number on them. From this evidence, the jury could have inferred that the personal property, the subject of the burglary, was owned by the Jewel Tea Company. Stokes, alias Coleman v. State (1954), 233 Ind. 300, 119 N.E.2d 424. A conviction may be sustained wholly on the basis of circumstantial evidence if there is some substantial evidence of probative value from which a reasonable inference of guilt may be drawn. McCoy et al. v. State (1958), 237 Ind. 654, 148 N.E.2d 190.
Under this first specification of error, it is also argued that appellant was 'presumably' incapable of forming the requisite intent to commit a felony because he was 'completely drunk.' No authority is cited to support this contention. However, the well-settled rule is that in determining the sufficiency of the evidence in the record of the trial court, this court will consider only that evidence most favorable to appellee, which is the State herein. Music v. State (1959), 240 Ind. 54, 161 N.E.2d 615. This is to the effect that appellant left the tavern with Vermillion and Wyatt around 2:00 o'clock in the morning. The drove to the stockroom, after stopping for the tire tool, where appellant and Wyatt got out of the automobile and appellant used the tire tool to break the lock of the door. They entered the building and both of them carried between twelve and fourteen boxes out and placed them on the back seat of the car. They then drove to the vacant house where all three of them put the boxes inside.
Intoxication is a question of fact. Istrate v. State (1928), 200 Ind. 370, 163 N.E. 594. We are of the opinion that there was sufficient evidence from which the jury could have found that appellant's consumption of beer did not deprive him of the mental capacity to form an intent to commit the burglary.
The second specification of error is that the court erred in not ruling on appellant's amended motion for new trial and 'did not note its filing for record.' At page 27 of the transcript there is a record and order book entry of the filing of the motion for new trial, dated June 27, 1961. At page 28 it is shown that the court overruled this motion on July 14, 1961. Inserted between these two pages is a copy of the purported amended motion for new trial, signed by appellant pro se. The page is shorter and not the same type or material as the rest of the pages in the transcript. It is numbered page 27 A.
On August 28, 1961, appellant filed a notice of appeal, stating that appellant would perfect an appeal to the Supreme...
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