Wells v. State, 1168S188

• Docket Nº: No. 1168S188
• Citation: 254 Ind. 608, 22 Ind.Dec. 573, 261 N.E.2d 865
• Case Date: September 09, 1970
• Court: Supreme Court of Indiana

Page 865

261 N.E.2d 865 254 Ind. 608 Harrison Eugene WELLS, Appellant,
v.
STATE of Indiana, Appellee. No. 1168S188. Supreme Court of Indiana. Sept. 9, 1970.

[254 Ind. 609]

Page 866

Robert L. Sheaffer, Shelbyville, for appellant.

Theodore L. Sendak, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.

DeBRULER, Judge.

This is an appeal from a conviction for Second Degree Burglary, Acts 1941, ch. 148, § 4, Burns' Ind.Stat.Ann. § 10--701(b), in a trial by jury held in the Shelby County Superior Court.

A. Appellant's first allegation of error is that there was insufficient evidence to sustain the conviction. In reviewing this allegation this Court will not weigh the evidence nor resolve questions of credibility, but will look to that evidence and the reasonable inferences therefrom which support the verdict of the trial court. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which a reasonable trier of fact could infer that the appellant was guilty beyond a reasonable doubt. Fair v. State (1969), Ind., 250 N.E.2d 744.

Robert Marshall testified that he was the owner of Robert D. Marshall, Inc., a construction company, and sometime in early December 1967, the company office was broken into by someone breaking a pane of glass in the door and unlocking it. The company payroll checks which were in a desk drawer were stolen. Among the checks stolen was one made out to Norman Thompson for $50.34. Marshall discovered this in the morning when he went to the office and he called the police around 7:30 to 8:00 a.m. This was the only burglary Marshall had ever had.

[254 Ind. 610] Officer Dagley testified that on December 7, 1967, he investigated a reported crime at Robert D. Marshall, Inc., office. He found a broken pane in the rear

Page 867

door near the lock, and pry marks on one window.

James Antle testified that in the early part of December 1967, he picked appellant up at his home around 6:00 p.m. and proceeded to the Blue River Inn for some beer. Appellant and Antle decided to go to the Robert D. Marshall, Inc., office to steal some blank checks, fill them in and cash them. Appellant had worked for Marshall and had been in the office and knew where the blank checks were. Antle let appellant out to go raise a window and sneak in but appellant reported they were nailed shut. The pair decided that appellant would break a window and Antle roared his engine to hide the sound of breaking glass. Appellant returned not with blank checks but with a batch of payroll checks and while Antle drove around appellant selected one to cash. They arrived at the Standard Supermarket in Shelbyville, around 9:00 p.m. and appellant went inside and returned with around $50, half of which he gave to Antle. The rest of the checks were destroyed.

Mrs. Gay testified that on December 6, 1967, she was an employee of the Standard Supermarket in Shelbyville, and that between 8:30 and 9:30 that evening she cashed a payroll check of Robert D. Marshall, Inc., payable to Norman Thompson. She identified a photograph of the front side of the check which was for $50.34. She could not identify the man who cashed it but she said he endorsed it at that time.

The state was required to prove that Appellant:

1. Broke and entered,

2. a building which was not a place of human habitation, namely, the office of Robert D. Marshall, Inc.,

3. with the intent to commit a felony, namely theft.

Appellant argues that the only evidence that would authorize a guilty verdict was the uncorroborated testimony of James [254 Ind. 611] Antle, an admitted accomplice. There is no question that there was ample corroborating evidence for the fact that a burglary had been committed but appellant claims there was no corroboration for the fact that he participated in that crime. Antle was the only witness that directly identified appellant as the perpetrator of the crime, which on the authority of past cases in this court would have been sufficient evidence to sustain the verdict. Smith v. State (1961) 241 Ind. 601, 174 N.E.2d 47; Shepherd v. State, Ind., 260 N.E.2d 563. However in this case the prosecutor took the highly commendable action of seeking and obtaining evidence which corroborated Antle's testimony that appellant participated in the crime. This evidence consisted in the testimony of Sgt. Buck, a State Police handwriting expert who testified that in his opinion appellant forged the name Norman Thompson on the stolen check. There was ample evidence to sustain the verdict.

B. Appellant next contends that the trial court erred in overruling appellant's objection to a question by the prosecutor put to one of appellant's witnesses named Groff whose testimony was intended to impeach the testimony of Antle. The question was:

'Now we will ask you, Mr. Groff, if at any time during your being in the Shelby Co. jail, that you ever told any Sheriff, Deputy, or me, that you would enter any plea whatsoever in return for a bottle of paregoric?'

Appellant objected saying 'To which we will object, Judge. That's not proper.' Appellant did not say what was improper about that question or indicate the basis of the objection. On appeal, for the first time, appellant argues that the question was a foundation question for impeachment and as such was not sufficiently definite in form. This issue should have been presented to the trial court and cannot be raised for the first time on appeal. Hardin

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v. State (1970), Ind., 257 N.E.2d 671. This is not a [254 Ind. 612] case where the objection, though vague or ambiguous, is sufficiently specific due to the context in which it is made to call the trial court's attention to the grounds for the objection. This question occurred in a series of questions concerning the witness's addiction to drugs. Prior to this question the following question was asked:

'Now isn't it a fact further, Mr. Groff, that you told Otha Bishop, the Sheriff of Shelby County, that if he would get you a bottle of paregoric that you would plead guilty to anything?'

Appellant did not object to that question at that time. Later he included that question as one of 10 questions which appellant alleged were a basis for mistrial due to their prejudicing the jury. All of this occurred prior to the question at issue here. If the appellant's unexplained objection called attention to any error it was the same one he had already raised in his motion for mistrial. However this was not argued on appeal.

C. Appellant next contends that the trial court erred in admitting State's Ex. 4, a photograph of the front side of the Robert D. Marshall, Inc., payroll check made out to Norman Thompson which Mrs. Gay cashed on December 6, 1967. Appellant contends that the original check was the best evidence and a copy was not admissible unless the original check was accounted for. The best evidence rule is not applicable here because the record shows that the Exhibit was not offered as a copy substitute for the original check but rather as real evidence in support of Mrs. Gay's testimony. Mrs. Gay testified that it was normal procedure to take a photograph of each check being cashed and that was done by her in this case. The exhibit was offered to demonstrate the results of the procedure testified to by Mrs. Gay. In any case the original check was later introduced in evidence by the state making any error in admitting the photograph harmless.

D. Appellant next contends that the trial court erred in admitting State's Ex. 2 because it was hearsay evidence. Ex. [254 Ind. 613] 2 was the partial contents of a police complaint report, with part of the writing on the report covered over and not a part of the exhibit. The exhibit read as follows:

COMPLAINT REPORT SHELBYVILLE POLICE DEPARTMENT

COMPLAINTANT: Robert D. Marshall

ADDRESS: 1215 S. Miller Street

CITY: Shelbyville STATE: Ind.

PHONE NUMBER: _ _ EXTENSION: _ _

METHOD OF RECEIVING COMPLAINT: Phone

NATURE OF COMPLAINT: _ _

EXACT LOCATION: Same

CASE NUMBER: 67--115

DATE RECEIVED: 12--7--67

TIME RECEIVED: 7:52 a.m.

RECEIVED BY: McKinney

ASSIGNED TO: PD

RADIO LOG NUMBER: #6333

CASE CLOSED: _ _

NUMBER ARRESTS: _ _

INITIAL COMPLAINT: Wants Police to come down that a B & E. of his office

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(All the information with a line under it was in handwriting in the actual exhibit.) Dennis McKinney, who had been employed as a radio operator by the Shelbyville Police Department in December, 1967, testified that that report was part of the normal records of the Shelbyville Police Department, and he prepared it at the time of the call in the regular course of his duties as radio operator for the Department. The handwriting and name were his but he could only vaguely recall this particular report and could not recall who had made the complaint.

After several unsuccessful offers the prosecutor offered Ex. 2 only for the purpose of showing the time and date it was received. Appellant objected that the report contained matters which were hearsay because the result of conversations outside the presence of appellant. The trial court admitted the exhibit as a 'business entry' exception to the hearsay rule and appellant argues that this trial court ruling was erroneous.

[254 Ind. 614] Hearsay evidence has been...