Asher v. State

244 N.E.2d 89, 253 Ind. 25, 1969 Ind. LEXIS 286

• Court: Indiana Supreme Court
• Decided: February 3, 1969
• Docket: 30,854
• Status: Published

Opinions

Arterburn, J.

The appellant was charged by affidavit and found guilty of the crime of robbery. The only issue presented in appellant’s brief is that “no reasonable man could find the appellant guilty on the evidence submitted to the jury.” It is contended “that the only evidence against the defendant was the uncorroborated testimony of an alleged accomplice and such uncorroborated testimony was refuted by independent, unrebutted and unchallenged testimony on behalf of this defendant.”

. The evidence shows that the Burger Chef restaurant on South Madison in Indianapolis was robbed by two gunmen about 11:20 p.m. on April 26, 1964. None of the employees of the Burger Chef saw or heard the vehicle in which the two robbers came or in which they made their escape. The same night about 12:80 a.m. the police brought Robert U. Brown and Donnie Richey to the Burger Chef, where Brown was immediately identified by all three employees as one of the robbers. Brown implicated appellant Asher and his co-defendant, Oie Willoughby. Brown testified that Asher had approached him and suggested that they make some dishonest money together, and he introduced him to Willoughby and together they discussed “scores” possibilities, that they drove around Indianapolis in a taxicab and looked at and discussed possible places for holdups.

The accomplice Brown testified that he, Asher and Willoughby decided they would rob the Burger Chef restaurant. Pursuant to this plan they left Brown’s apartment between 10:00 p.m. and 10:30 p.m. on the night of the robbery and arrived at the restaurant between 10:30 p.m. and 11:00 p.m. Asher waited in the cab while Brown and Willoughby robbed the restaurant. After the robbery had been completed, Asher returned Brown and Willoughby close to Brown’s apartment and let them out. About ten or fifteen minutes after Brown and Willoughby had arrived in the bedroom of Brown’s apartment, Asher came in, helped divide the money taken in the robbery, and left about fifteen minutes later, which was around 12:00 p.m.

Corroborating evidence which the appellant contends was “only minor corroboration” was given by a witness, Donnie Richey, who testified to substantially what Brown related occurred at Brown’s apartment, namely, that Brown returned to his apartment about 12:00 p.m. on the night of the robbery, that Asher came in about ten minutes later and went into a bedroom where Brown and Willoughby were. They stayed about fifteen minutes and left, and while they were in the bedroom he heard what sounded like the handling of a considerable amount of money and change. According to Brown’s testimony they divided the money three ways in his apartment, and he got $317.00.

The appellant attempts to get us, as a court of appeals, to disregard the testimony of an accomplice or, in the alternative, consider the evidence of Brown as “inherently improbable and runs counter to human experience.”

It has long been the law in Indiana that the testimony of an accomplice, if otherwise competent as a witness, may be accepted by the jury and believed, and in such event is sufficient evidence for conviction. Fitzgerald v. State (1966), 248 Ind. 19, 219 N. E. 2d 603; Mavrick v. State (1965), 247 Ind. 77, 210 N. E. 2d 426; Couch v. State (1965), 246 Ind. 531, 207 N. E. 2d 365; Smith v. State (1961), 241 Ind. 601, 174 N. E. 2d 47.

Burns’ Indiana Stat. Anno. § 9-1603 provides specifically that “accomplice, when they consent to testify” are competent witnesses. Once a witness had been found to be competent, the amount of weight to be given the testimony is one for the jury or the trier of the facts, and not for this appellate court. As stated by Judge Emmert in Kraus v. Kraus (1956), 235 Ind. 325, 328, 132 N. E. 2d 608, 610:

“When an issue concerning the credibility of witnesses or the weight of the evidence is presented for our determination on appeal, we should clearly avoid any tendency to place ourselves upon the trial bench and usurp the functions of the trial judge. We are dealing with a cold record and cannot observe the witnesses, their conduct, and manner of testimony while on the witness stand.”

This rule is applicable both in civil and criminal cases. In Jackson v. State (1924), 194 Ind. 561, 562, 143 N. E. 625, this Court said:

“Questions as to the credibility of witnesses, and as to what inferences shall be drawn from the facts proved are for the jury and the trial court, and if part of the evidence, standing alone, would justify a finding of guilty, this court cannot set aside the verdict of guilty because of other evidence to the contrary.”

This was further supported by the statement in the case of Hammond v. State (1928), 200 Ind. 348, 344, 163 N. E. 262, 263: “It was the duty of the jury to determine if this witness told the truth in the trial under consideration.”

In addition to the testimony of the accomplice in this case, the jury also heard a corroboration of that testimony by Donnie Richey, which also tended to show the guilt of the accused. The conflicting testimony was presented to the jury, and as a result of their weighing the evidence the conclusion of guilt was reached. On appeal we look only to the evidence most favorable to the state to see if there is enough evidence to support the conviction, which in this case there plainly is. For an appellate court to go beyond this role is an invasion of the function of the trial court.

The judgment of the trial court is affirmed.

DeBruler, C. J., Hunter and Givan, JJ., concur.

Jackson, J., dissents with opinion.