Durrett v. State

230 N.E.2d 595, 249 Ind. 12, 1967 Ind. LEXIS 341

• Court: Indiana Supreme Court
• Decided: November 1, 1967
• Docket: 30,542
• Status: Published

Opinions

Arterburn, J.

The appellant was charged by affidavit of the crime of grand larceny. He was tried and convicted by a jury and sentenced to serve not less than one nor more than ten years in the Indiana State Reformatory and fined $100.00 and costs.

The appellant assigns as error the overruling of his motion for a new trial. The five items contained therein are grouped under five headings in the appellant’s brief, which challenge the sufficiency of the evidence.

For that reason, we first review the evidence most favorable to the State. This shows that Mrs. Alma Helena Siska, on October 10, 1962, discovered that her locked jewelry box in her bedroom had been- pried open and certain earrings and some other items were missing. The next day officers from the police department made an investigation and discovered a set of antique earrings at a pawn shop in the city. The earrings conformed to the description Mrs. Siska had made. The operator of the pawn shop positively identified the appellant Durrett as the man who came into the store on October 10, 1962, the day the theft was discovered, and sold him the earrings, which were identified as State’s exhibits. The pawnshop owner testified that the right thumb print on the dealer’s pawn card was the appellant’s. The appellant admitted that he had sold the earrings to the pawn dealer, but claimed he had purchased them in California. The appellant did not have a receipt for the claimed purchase nor could he identify the alleged seller.

The evidence further showed that Mr. Siska testified that he had purchased the earrings for his wife as a present in Estonia in 1925 on the occasion of the birth of their son; that he paid one hundred and eighty Estonian krone for them, which amounted to at least $200.00 in currency of this country. He identified the earrings. Mrs. Siska also stated: “Those are mine. I recognize them because I have always cleaned them around the large stone in the middle.” We find no grounds for questioning the identity of the jewelry involved here. There is likewise positive evidence as to the value of the earrings, since Mrs. Siska, the owner, testified that they were worth $200.00 or more.

The owner of the pawn shop, an expert, who had purchased these earrings from the appellant, testified:

“. . . as a unit in this antique earring set-up they could bring anywhere from $200 to $250 ... as a unit, they would probably sell for around $200 on a resale basis. . .

This appears to us to be competent and ample evidence as to the value of the property.

It is urged that there is no proof of how the appellant obtained the jewels, since there was no evidence that he was employed by Mrs. Siska or was ever in the Siska residence. However, the fact is conclusively shown that he did get possession of the jewelry shortly after the theft was discovered.

“Exclusive possession of property shown to have been stolen shortly after the larceny, unquestionably is a circumstance to be considered by the jury, and if the proof is made that such larceny was recently committed and there is no evidence to explain the possession of the defendants, a larceny conviction based on such evidence will be sustained on appeal.” Mims et al. v. State (1957), 236 Ind. 439, 444, 140 N. E. 2d 878, 880; Gilley et al. v. State (1949), 227 Ind. 701, 88 N. E. 2d 759.

Some argument is made in the brief that the defendant has no burden of proof in a criminal case. We have here no such question before us. In every successful criminal prosecution there usually comes a time when the State establishes a prima facie case, giving consideration to all legitimate and reasonable inferences that may be drawn from the facts presented, which proves beyond a reasonable doubt that the defendant is guilty. At that point, unless the defendant sees fit to come forward with proof to rebut the prima facie case and convince the jury he is innocent, the jury, from the evidence presented to it, may convict the defendant. It appears to us that was the circumstance here. The State presented such a case. It thereby sustained the burden of proof. The defendant failed to offer any explanation that convinced the jury.

The judgment is affirmed.

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Lewis and Mote, JJ., concur.

Hunter, C. J. and Jackson, J., dissent with opinions.

This case was assigned to the writer of this opinion on October 16, 1967: