Williams v. State
| Decision Date | 11 December 1969 |
| Docket Number | Nos. 968,s. 968 |
| Citation | 253 Ind. 316,253 N.E.2d 242,19 Ind.Dec. 623 |
| Parties | Michael Allen WILLIAMS, Thomas John Spegal, Appellants, v. STATE of Indiana, Appellee. S 143 |
| Court | Indiana Supreme Court |
William T. Laswell, Indianapolis, for appellants.
Theodore Sendak, Atty. Gen., James F. Biddle, Deputy Atty. Gen., Indianapolis, for appellee.
Appellants, Thomas John Spegal and Michael Allen Williams, were tried in the Marion County Criminal Court, Division Two, and convicted of theft on June 7, 1968. Both filed timely motions for new trials on the grounds that the findings and decision of the trial court are (1) contrary to law, and (2) not sustained by sufficient evidence. On the overruling of their motions, appellants prosecute this appeal.
Before examining the arguments urged upon the court by the appellants, it should be noted that in its brief, the appellee, State of Indiana, has devoted much attention to appellant's alleged non-compliance with the Rules of the Supreme Court of Indiana in perfecting their appeal. Appellee argues that appellants failed to comply in whole or in part with Rules 1--14B, 2--3, 2--5, 2--17, and 2--19. Although our holding in this case does not require us to discuss each of appellee's allegations, we feel obliged to recognize the impressive thoroughness of its research as well as its dexterity with our rules. We affirm, however, our prior position in the matter of non-compliance with these rules particularly in criminal cases: this court prefers to decide cases on their merits and we will do so where the appellants' brief, in spite of technical errors, sufficiently sets forth the exact questions raised and the reasons therefor. Capp v. Lindenberg (1961), 242 Ind. 423, 178 N.E.2d 736. Allison v. State (1959), 239 Ind. 545, 157 N.E.2d 193. Wylie v. Meyers (1958), 238 Ind. 385, 150 N.E.2d 887.
The affidavit under which the appellants were charged reads as follows:
'State of Indiana, Marion County, SS:
Edward Albert Eyster
Thomas John Spegal
Michael Allen Williams
In the Criminal Court County of Marion
July Term, 1967
Be It Remembered, That, on this day before me, Noble R. Pearcy Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came Donald Mills who, being duly sworn, upon his oath says that Edward Albert Eyster, Thomas John Spegal and Michael Allen Williams or on about the 14th day of August, A.D. 1967 at and in the County of Marion in the State of Indiana, committed a crime of theft in that they knowingly, unlawfully and feloniously exerted unauthorized control over a certain vehicle of Daniel R. Shaw, which vehicle is described as follows, to-wit: 1955 Chevrolet 2-Door Sedan, intending to deprive Daniel R. Shaw permanently of the use and benefit of said property, then and there being . . . contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.
s/s Donald Mills
Subscribed and Sworn to before me, this 18th day of August, A.D. 1967'
The court below sitting without jury, found the appellants guilty of theft as charged. This offense if set out in Ind.Ann.Stat. § 10--3030 (1969 Cum.Supp.) as follows:
'Theft in general--A person commits theft when he (1) knowingly:
(a) obtains or exerts unauthorized control over property of the owner; * * * (2) either:
(a) intends to deprive the owner permanently of the use or benefit of the property; or
(b) uses, conceals or abandons the property in such manner as knowingly to deprive the owner permanently of such use or benefit; or
(c) Uses, conceals or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.'
The title of the act under which this offense is found is the Offenses Against Property Act, Ind.Ann.Stat. § 10--3028 (1969 Cum.Supp.) which includes §§ 10--3028 to 10--3041. The penalty for said offense is found in Ind.Ann.Stat. § 10--3039 (1969 Cum.Supp.) That section provides for penalties as follows:
'Penalties--(1) A person convicted of theft of property not from the person and of less than one hundred dollars ($100) in value shall, except as otherwise provided in this section, be fined not more than five hundred dollars ($500) or imprisoned for not more than one (1) year, or both, or such person may be imprisoned in the state prison not less than one (1) year nor more than (5) years, and fined in a sum not exceeding five hundred dollars ($500) and be disfranchised and rendered incapable of holding any office of profit or trust for any determinate period. * * *'
Appellants' argument that the findings and decision of the trial court were not sustained by the evidence is based on four alternative grounds: (1) The state failed to prove that the defendants ever had in their possession the property stolen. (2) That mere possession of stolen goods is not grounds in itself for conviction for theft, but must be coupled with other evidence showing that the defendants did in fact commit the crime of theft. (3) That the state failed to prove all of the elements of the offense under which the defendants were convicted in that the property stolen was not in fact a 'motor vehicle' or a 'vehicle'. (4) And finally that the evidence presented by the state was obtained by a warrantless arrest made without probable cause and was therefore inadmissible.
The commission of the crime of theft, as set forth above, (§ 10--3030, supra) turns on the meaning of the phrase 'obtains of exerts unauthorized control over property.' Ind.Ann.Stat. § 10--3040 entitled 'Definitions' which applies to § 10--3030, supra, states:
'* * * (10) 'Obtains or exerts control over property' includes but is not limited to the taking, carrying, driving or leading away, concealment, or the sale, conveyance, encumbrance, transfer of title to or interest in, or possession of property, or the securing or extending a right to retain that to which another is entitled.' (our emphasis)
Under the issues formed in this cause the burden was placed upon the state to prove each of the following elements of the crime charged, beyond a reasonable doubt before conviction would lie--they are:
(1) that the appellants knowingly exercised unauthorized control over the property and
(2) that they intended to deprive the owner, Daniel R. Shaw, permanently of the use and benefit of said property.
Appellants allege no error as to proof or sufficiency of the evidence relating to the second element of the offense charged.
It is clear that they base their appeal in this case on the theory that control of property requires proof of possession and unless possession is proved, there can be no finding of unauthorized control. This is clearly asserted in appellants' first two grounds for appeal. It is, therefore, incumbent upon us to examine the statute to determine the meaning and import of these terms and to test the sufficiency of the evidence as it relates thereto.
The terms control and possession are not precisely synonymous although they do have common elements in their meanings. Webster's International Dictionary gives the legal definition of possession as 'one who has physical control of the thing and holds it for himself.' All the definitions contained in recognized law dictionaries indicate that the element of custody and control is involved in the term possession. State v. Virdure (Mo.1963), 371 S.W.2d 196. Possession of a thing means having it under one's control or under one's dominion. United States v. Malfi (3 Cir. 1959), 264 F.2d 147. A person who is in possession of a chattel is one who has physical control with the intent to exercise such control on his own behalf. New England Box Co. v. C & R Const. Co. (1943), 313 Mass. 696, 49 N.E.2d 121, 150 A.L.R. 152. Possession involves a present or, in case of constructive possession, a past ability to control the thing possessed plus an intent to exclude others from such control. State ex rel. Edie v. Shain (1941), 348 Mo. 119, 152 S.W.2d 174. For additional definitions of the word possession see, 72 C.J.S., p. 233; also see 'Possession' (control, care or custody), 33 Words and Phrases, p. 80; and 'Custody' (charge, control or possession) 10A Words and Phrases, p. 500.
By contrast the word control means the power or authority to manage, superintend, restrict, regulate, direct, govern, administer or oversee. Black's Law Dictionary, Fourth Edition. It is the power or authority to manage * * * restrict. State v. First State Bank of Jud (1924), 52 N.D. 231, 202 N.W. 391.
'Ordinarily 'control' means * * * power or authority to check or restrain; regulating power; restraining or directing influence * * * so to it may imply, or not imply possession, depending on the circumstances * * *.' 18 C.J.S., p. 28 (our emphasis)
See also the varying definitions of 'Control' in 9A Words and Phrases, p. 4 and following.
Our conclusion based on a meticulous examination of the meanings of these two words is this: that to prove control over a chattel or over other property, one does not need in all cases to show conduct which amounts to possession. Although control is a necessary element in proving possession, the converse is not true. Our analysis is supported by the wording of the statute (§ 10--3040, supra) which states that the definition of 'exert control over property' includes but is not limited to possession.
Against this analysis, let us examine the evidence most favorable to the state in this case: Direct examination of the arresting officer Bernard L. Smith of the Indianapolis Police Department elicited the following:
'Q. Where was the vehicle you saw on that date?
A. It was at the rear of 3631 East Washington, in a garage--had the rear door, overhead door, open.
Q. The garage door was open?
A. Yes sir.
Q. Were any other persons present in that vicinity around the time you saw it?
A. Yes, sir, there were.
Q. Who were those person (sic)?
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