Williams v. State, 472A190
| Decision Date | 02 November 1972 |
| Docket Number | No. 472A190,472A190 |
| Citation | 153 Ind.App. 597,288 N.E.2d 580 |
| Parties | Phyllis WILLIAMS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Frederick F. McClellan, Muncie, for appellant.
Theodore L. Sendak, Atty. Gen., of Indiana, Robert F. Colker, Asst. Atty. Gen., for appellee.
Defendant-appellant was charged by affidavit with the crime of second degree burglary to which she pleaded 'not guilty', was tried and convicted by a jury of the crime of second degree burglary and, after a pre-sentence investigation, was sentenced pursuant to the statute.
This appeal is based on two specifications only, (1) the finding of the jury is contrary to law in that the State of Indiana did not introduce any evidence, direct or indirect, to show the presence of the defendant at the scene of the alleged burglary, and (2) that a witness for the State of Indiana, one Rose McDonald, was in a state of intoxication when she testified in said cause, thereby curtailing defendant's right to cross examine.
Howard McDonald testified that he owned a general store in Greensboro, Indiana, together with the sale of gasoline there which was his business on May 25, 1970, and that the general store was attached to his dwelling house in Greensboro, Indiana.
He further testified that about 4:30 A.M. on May 25, 1970, he entered the general store and heard glass breaking in the front thereof. He discovered that the store had been broken into, the trash boxes had been dumped and filled, along with shopping carts, with merchandise.
He saw the intruder in the store but could not then or later identify that person. In about twenty minutes, after first seeing the intruder, he found a coat containing a set of keys lying upon a car he had parked near the store, and also observed a stepladder and broken window in the store at that time.
He later went with the Henry County Sheriff's Deputies to a Chevrolet car located some one and one-half blocks from the store, which car's ignition could be started by one of the keys found in the pocket of the coat.
One Deputy Sheriff testified he first saw the car in question about a half hour after the time of the burglary and the other Deputy Sheriff testified it was about 6:30 A.M., or two hours after the burglary. This was Deputy Piercy, and he further testified that he started the Chevrolet car with one of the car keys out of the coat found near the store. Deputy Piercy asserted he was able to identify the coat as similar to one owned by the defendant, which he had seen her wear approximately two months prior to the break-in.
A state's witness testified she first observed the defendant at approximately 7:30 A.M. about one block from the scene of the alleged burglary on the date of the burglary. A second witness testified that she also saw the defendant at about 7:30 A.M. that date.
Defendant acknowledged the coat, the keys and the car which was about one and one-half blocks from the store to be hers, but a witness, Clyde Denny, testified that the keys had been taken by Rose McDonald. The defendant testified she had left the coat in question in the car and suggested it must have been taken with the car and explained her presence in Greensboro as looking for the car. She was a resident of the city of New Castle.
There is no evidence that the defendant was at the scene of the alleged burglary before, or at the time, or shortly after it occurred. She was not seen in Greensboro on May 25, 1970, by anyone until about 7:30 A.M. She was not seen in her car.
Defendant, under assigned error number one, contends that the finding was contrary to law and based upon inadequate evidence from the State which failed to present any evidence, direct or indirect, to prove the presence of the defendant at the scene of the burglary or link her to any specific acts constituting crime of burglary in the second degree. Defendant relies on the case of Gunn v. State (1972), Ind., 281 N.E.2d 484, 485.
In the Gunn case the officers were called to a shopping center where one of the officers went to the rear and one to the front door. The one going to the rear came upon the defendant, Gunn, sitting in his automobile parked nearby with the engine running. A pair of bolt cutters were in the vehicle. At the same time this officer saw another man running from the area of the store's loading dock but was shortly thereafter apprehended walking around the building, but winded and breathing hard. An inspection of the store disclosed it had been broken into, by breaking through a door panel. There was other evidence inside the store of entry and damage. The two defendants were caught in the night time when the store was not open for business and had tools capable of cutting into the store. They were convicted by a jury.
Our Supreme Court said:
The court further said that although the evidence was circumstantial only, they could not say, as a matter of law, that the jury acted unreasonably; that they could not say that there was a complete lack of evidence from which a reasonable man could infer, beyond a reasonable doubt, that the defendants broke into and entered the premises with intent to commit a felony, and affirmed the case.
While it is true that no one actually saw and identified the defendant-appellant as being at the scene of the burglary or in the vicinity of the general store at Greensboro shortly before or after the alleged burglary, there is evidence which links the defendant-appellant with the scene of the alleged burglary, such as: (1) a coat found outside the store which Deputy Piercy remembered as having been worn by the defendant-appellant in March of 1970; (2) keys in the coat fit Phyllis Williams' car in particular, which was found one and one-half blocks from McDonald's store; (3) she was within a block or so of the store about 7 o'clock in a town where she did not reside and apparently looking for her automobile; (4) when apprehended, defendant-appellant had a scratch and dried blood on a white T-shirt she was wearing, as a probable consequence of crawling through a broken window to perpetrate the crime; (5) defendant-appellant admitted the coat containing the keys was hers and that the keys belonged to her Chevrolet automobile, which was found within one and a half blocks of the burglarized premises; (6) Ross McDonald testified on direct examination that within two weeks prior to the trial she had a conversation with the defendant-appellant, who told her that if she would say that she and Jerry Pence robbed the store the appellant would get Charlie Heck out of jail, and (7) on cross examination Rose McDonald was asked if she ever used defendant-appellant's Chevrolet automobile which she denied but did admit that she had driven defendant-appellant's Buick automobile.
The evidence of the owner was that the ladder had been placed up next to the window and that the window had been knocked out, leaving jagged glass, and was of sufficient size that the defendant-appellant could have...
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