Weekley v. State, No. 1-680A163

• Docket Nº: No. 1-680A163
• Citation: 415 N.E.2d 152
• Case Date: January 29, 1981
• Court: Court of Appeals of Indiana

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415 N.E.2d 152 Theodore WEEKLEY, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 1-680A163. Court of Appeals of Indiana, First District. Jan. 29, 1981.

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John D. Clouse, Michael C. Keating and Laurie A. Baiden, Evansville, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Theodore Weekley was charged with forgery ¹ and conspiracy to commit forgery. ² Trial by jury resulted in acquittal of forgery and conviction of conspiracy. Weekley appeals from his conviction on the conspiracy count. We affirm.

STATEMENT OF FACTS

The evidence most favorable to the State reveals that one Helen Boulden received a Social Security check in the amount of $192.80 each month, usually by the third day of each month. She did not receive her November 1978 check. Having been advised by her postman that her check had been delivered, she informed the Evansville police department that her check was missing. Boulden had not given anyone permission to obtain her check and did not endorse the check.

On November 4, 1978, Weekley came to the home of Juanita Crenshaw and asked Juanita and her sister Sherlene to accompany him and James Taylor to Jerry's Market and to cash some checks for him. Weekley promised Juanita and Sherlene twenty dollars each and some groceries if they would cash the checks. The four proceeded to the market in an automobile. Weekley gave a check to Juanita which bore an endorsement. Juanita went into the market, bought some groceries cashing the check to pay for them, returned to the car, gave the change to Weekley who let her keep the groceries and gave her twenty dollars. Weekley gave another check to Taylor who gave it to Sherlene. This check either already had been endorsed or was then endorsed by Taylor. This was Helen Boulden's Social Security check. Sherlene attempted to repeat the same procedure performed by Juanita. However, the store had been alerted to the possibility of certain stolen checks being passed. The cashier,

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Sheila Allen, checked a list of stolen checks and found this check on the list. She called Officer Bennett of the Vanderburgh County police who was then working as a security guard in the market. All four persons were then apprehended. Later, both Juanita and Sherlene gave statements to the police and postal authorities. Boulden's Social Security check was identified by Boulden, Sheila Allen, Sherlene Crenshaw, and Officer Bennett. A fingerprint expert employed by the U.S. Postal Inspection Service identified latent fingerprints found on this check as those of Weekley. Sherlene, Taylor, and Weekley were jointly charged in both counts. Juanita has never been charged. Sherlene received three years probation as a result of a plea bargain. Taylor and Weekley were tried jointly. Both Sherlene and Juanita testified for the state. ISSUES

Weekley presents the following issues for our consideration:

1. Did the court err in refusing certain instructions tendered by Weekley?

2. Was the verdict of the jury supported by sufficient evidence?

3. Was the verdict contrary to law in that the acquittal on the substantive count and the conviction on the conspiracy count are fatally inconsistent requiring acquittal on both counts?

DISCUSSION AND DECISION

Issue One

Weekley contends the court committed reversible error in refusing his tendered instructions numbered 3, 4, 5, and 6. Weekley's tendered instruction 3 stated:

"I instruct you that if there is a conflict of evidence and you cannot determine a fact in your own minds from the evidence, then you should give the benefit of the doubt to the defendants. Therefore, if the evidence in this case, on any material point necessary to a conviction, is so conflicting that you cannot determine whether they are guilty or innocent you should give the defendants the benefit of the doubt."

His instruction 4 read as follows:

"The weight of the evidence is not necessarily determined by the number of witnesses testifying on either side. You should consider all the facts and circumstances in evidence to determine which of the witnesses are worthy of greater credence. You may find that the testimony of a small number of witnesses on one side is more credible that (sic) the testimony of a greater number of witnesses on the other side."

We believe the subjects of Weekley's instructions 3 and 4 were adequately covered by the court's instruction 16 ³ which told the jury:

"You are the sole judges of the facts and credibility of witnesses who have testified in this case. It is your duty to reconcile all the statements of the witnesses on the theory that the defendants are innocent, if you can. If you cannot reconcile the statements of witnesses on account of contradictions, then you have a right to believe the witness or witnesses you deem most worthy of credit and disbelieve the witness or witnesses whom you believe least worthy of credit. In determining whom you will believe, you may consider the nature of the evidence given by them, their interest, bias or prejudice, if any, disclosed; their opportunity for knowing the facts about which they testify; their manner and deportment while on the witness stand; how far they are corroborated by other testimony, and in weighing the testimony and determining the credibility of the witnesses, it is proper for you to take into consideration all the surrounding circumstances of the witnesses as brought out in the evidence, their interest, if any, in the result of the action, and such other facts appearing in the evidence as will, in your opinion, aid you in determining whom you will believe; and you may also in considering

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whom you will or will not believe, take into account your experience and relations among men."

Weekley's tendered instructions 3 and 4 concerned credibility of witnesses and the manner of weighing the testimony. In our opinion, the court's instruction number 16 adequately instructed the jury on these points. An instruction may be refused without error if the subject is sufficiently covered by other instructions. Hoskins v. State, (1978), 268 Ind. 290, 375 N.E.2d 191. "The court is not bound to give an instruction, although it may be a correct statement of the law and applicable to the evidence, if the substance thereof is covered by instructions which are given." Daniels v. State, (1980) Ind., 408 N.E.2d 1244, 1247. Weekley argues that the court's instruction did not cover the issue of the number of witnesses testifying which was the subject of his instruction number 4. While Weekley's instruction 4 may have been an ampler statement of the law, it was not error to refuse it. Smith v. State, (1980) Ind.App., 403 N.E.2d 869. Since we believe the jury was adequately instructed on the matter of credibility of witnesses and manner of weighing their testimony, it was not error to refuse tendered instructions 3 and 4. Further, we point out that the jury also was properly instructed on the state's burden of proof and the presumption of innocence. Thus, no prejudice has been shown.

Weekley's tendered instruction number 5 stated:

"An accomplice is one who unites with another person in the commission of a crime, voluntarily and with common intent. An accomplice does not become incompetent as a witness because of participation in the crime charged. On the contrary, the testimony of one who asserts by his testimony that he is an accomplice may be received in evidence and considered by the jury, even though not corroborated by other evidence, and given such weight as the jury feels it should have. The jury, however, should keep in mind that such testimony is always to be received with caution and considered with great care."

This instruction appears to be taken from language employed in Newman v. State, (1975) 263 Ind. 569, 334 N.E.2d 684; Green v. State, (1960) 241 Ind. 96, 168 N.E.2d 345; and Kleihege v. State, (1934) 206 Ind. 206, 188 N.E. 786. However, the fact that certain language appears in an opinion does not necessarily make such language proper in a jury instruction. Drollinger v. State, (1980) Ind., 408 N.E.2d 1228; Jacks v. State, (1979) Ind., 394 N.E.2d 166. In Turner v. State, (1972) 258 Ind. 267, 271, 280 N.E.2d 621, our Supreme Court held improper an instruction stating "(t)he testimony of an accomplice should be cautiously received and carefully scrutinized by the jury, and weighed by the jury according to its credibility." It is true...