Wheat v. State , 24673.

• Decision Date: 27 February 1925
• Docket Number: No. 24673.,24673.
• Citation: 195 Ind. 660,146 N.E. 581
• Parties: WHEAT et al. v. STATE.
• Court: Indiana Supreme Court

195 Ind. 660

146 N.E. 581

WHEAT et al.

v.STATE.

No. 24673.

Supreme Court of Indiana.

Feb. 27, 1925.

Appeal from Circuit Court, Floyd County; John M. Paris, Judge.

Jesse C. Wheat, Louis Hunter, Clarence Barger, Lawrence Willenborg, and Levis Armstrong were convicted of robbery, and they appeal. Reversed and remanded as to Hunter and Barger; affirmed as to other defendants.

Stotsenburg, Weathers & Minton, of New Albany, for appellants.

U. S. Lesh, Atty. Gen., for the State.

EWBANK, J.

Appellants were jointly prosecuted, tried, and convicted on a charge of robbery. Each separately moved for a new trial, and each separately assigned as error the overruling of his motion. Hunter and Barger insist that the verdict finding them guilty is not sustained by sufficient evidence.There was evidence that the prosecuting witness, Ralph Rosen, lived in Louisville with his uncle, and worked in his uncle's bakery; that he lost $100 shooting craps at a gambling house in New Albany, and then pawned his watch for $25 and lost that; that he had there made the acquaintance of Hunter, and having suggested that some one take him home Hunter volunteered, and took him to the Willard Hotel in Louisville; that Barger did not go that time, but some other boy went along; that at the Willard Hotel Rosen got $100, and Hunter took him back to the gambling house in New Albany, where they arrived about 11 o'clock at night; that Barger was there, and one witness saw Willenborg there, but the prosecuting witness did not; that Wheat was there about 11:30, and “drew a gun”; that before he went to the gambling house Rosen had gone to a poolroom in New Albany at about 8 o'clock, and stayed 15 or 20 minutes, where he played a few games of pool, and where he saw Hunter; that the proprietor of the poolroom saw the other defendants in the poolroom that evening; that at about 1:30 or 2 o'clock in the morning Rosen left the gambling house with Hunter and Barger; that Hunter was going to take him to Louisville in a Ford sedan car, and Barger went along; that Hunter was driving at the rate of 12 or 15 miles an hour, “the speed limit,” and just as they were about to pass the Kentucky and Indiana bridge the other three defendants, with handkerchiefs tied over the lower parts of their faces, stopped the car; that these men had three pistols which (Rosen said) “they just kept aiming at me,” and said, “Hands up”; that none of the three in the car said anything, but Rosen got out and then the men with the guns said to Hunter and Barger to “Drive on,” and they drove forward on the only street by which they could go, until they reached where the road forked, one branch going through the tollgate and across the bridge, and the other turning up the hill, back into New Albany; they drove up this hill and disappeared from Rosen's view, but both Hunter and Barger testified that they drove at once to the police station and reported the robbery to “Nick Seery, the night policeman there,” and this evidence was undisputed; as they drove past the end of the bridge, the tollgate keeper called to them, thinking they intended to pass through the tollgate, but they turned away, up the hill and made no answer; they testified that they did not hear him; Hunter and Barger left Rosen behind as they fled, and the three men who had stopped them robbed him of $130 and his watch and chain; two of them held guns pressed against him and the other took the money and watch...