Greentree v. State

251 N.E.2d 835, 253 Ind. 91, 1969 Ind. LEXIS 292

• Court: Indiana Supreme Court
• Decided: November 3, 1969
• Docket: 31078
• Status: Published

Opinions

Givan, J.

Appellant was charged by affidavit with the .crime of robbery as defined by Burns’ Indiana Statutes § 10-4101. Trial was had by jury resulting in a verdict of guilty, upon which the appellant was sentenced to the Indiana State Reformatory for not less than ten years nor more than twenty-five years and disfranchised and rendered incapable of holding any office of trust or profit for ten years.

Appellant assigns the overruling of his motion for new trial as error in this Court.

The evidence most favorable to the State is that on May 31, 1966, at about 9:30 to 10:00 P.M., Sandra Kay Prewitt, Marilyn Faye Brewster, Robert “Speedy” Glidden and Joe Weatherford went to a Wake-Up station where appellant was employed. Appellant left work at the Wake-Up station with these persons in Weatherford’s car. They drove to a tavern on Ohio Street where Glidden was dropped off. They then proceeded to drive around in the car, during which time appellant asked Sandra Prewitt if Weatherford had any money with him. She answered that he did have what looked to her to be a lot of money. With appellant driving Weatherford’s car and Prewitt in the front seat with him and Weatherford and Brewster in the rear seat, they drove to Ellenberger Park for the purpose of “parking” where they arrived about 11:30 P.M. to midnight.

Sandra Prewitt testified that after they had parked for a short time appellant hit Weatherford in the side of the head with a hammer. Appellant then ordered Weatherford out of the car and demanded his money. Upon Weatherford replying that he did not have any, appellant pulled a knife with a six inch open blade and again struck Weatherford with the hammer.

The two girls, Prewitt and Brewster, searched Weather-ford’s pockets for the money, then Brewster discovered Weatherford’s billfold in the ,car.

Appellant again hit Weatherford, who ran from the scene to a nearby residence where he asked the occupants to call the police.

Prewitt, Brewster and appellant then returned to appellant’s apartment, which was also occupied by Sandra Prewitt and Marilyn Brewster. At that time appellant told Prewitt that he had parked the car on Ninth Street and had wiped off all of the finger prints.

Prewitt further testified that all of the money and papers taken from Weatherford were turned over to the appellant.

The next morning while appellant was eating breakfast in a restaurant, police officers entered and inquired as to his whereabouts, but the employee not realizing he was there, told the police he had not seen appellant. The police left without seeing appellant.

Appellant himself testified that upon learning the police were looking for him he started to go to work, but as he approached the place of his job he saw four or five policemen and so he did not go to work.

Appellant was arrested on the evening of the same day by Officer Hawkins. Upon arresting the appellant Officer Hawkins placed him in his patrol car. After removing appellant from the car he found two pieces of paper on the floor in the back seat where appellant had been sitting. These papers were not there before appellant entered the car. One piece of paper, being State’s Exhibit 1, was a purchaser’s receipt purchased by Joe Weatherford for $500. The second piece of paper, being State’s Exhibit 2, was a Western Union Telegraph Company receipt, received from Joe Weatherford for $15.00. State’s witness Prewitt identified Exhibit 1 as being one of the papers taken from Weatherford’s billfold and turned over to the appellant. Weatherford identified Exhibits 1 and 2 as being in his wallet at the time it was taken from him on May 31,1966, by the appellant.

Appellant first claims error in the giving to the jury, over objection, Court’s Instruction No. 32, which instruction reads as follows:

“The flight of a person immediately after the commission of the crime with which he is charged if there was such a flight, is a circumstance to be considered by you in connection with all the other evidence to aid you in determining the question of his guilt or innocence.”

To the giving of this instruction the appellant made the following objection:

“MR. WURSTER: Your Honor, the only instruction that the Court has that we would object to would be Instruction No. 32, which instruction pertains to flights by the defendant after the crime. We feel that in this case there was no evidence that the defendant — well, there was some evidence perhaps, that the defendant might have been at Ellenberger Park and left the scene. However, I think it would be up to the jury to decide, it’s going to be for the jury to decide whether or not in fact the defendant was in the park. Furthermore, it was shown that the defendant never left the city of Indianapolis. In fact, he was arrested several blocks from his apartment. For that reason, we see no reason for an instruction pertaining to a flight by the defendant.”

As stated in the above objections, there is evidence in the record that appellant and his companions left Ellenberger Park immediately after Weatherford escaped from them and went to a nearby home to summon aid.

There is also further evidence as set out above that the appellant, after learning the next morning that police were in fact searching for him, deliberately eluded police until he was involuntarily taken into custody by Officer Hawkins in the evening of that day. This evidence was sufficient to warrant submission of the fact to the jury as to whether or not appellant had in fact attempted flight after the commission of the crime. These facts being in the record for submission to the jury, the trial court was correct in the giving of Instruction No. 32. This Court has previously stated:

“. . . Flight of the accused, concealment, assumption of a false name, and related conduct are admissible as evidence of consciousness of guilt, and thus of guilt itself, but it is for the jury to determine what weight and value should be given to such evidence.” State v. Torphy (1940), 217 Ind. 383, 387, 28 N. E. 2d 70.

Appellant next argues that the evidence is insufficient to support the verdict. The main attack of appellant is that although the State called five witnesses in chief, the principal witness, Sandra Kay Prewitt, was for all intents and purposes an accomplice, and that she was awaiting sentence on a previous conviction, and further that she was the mother of an illegitimate child, a former inmate of the girls school, and had been drinking on the night of the alleged crime, and further that she was shown to be an intimate friend of Robert “Speedy” Glidden, who also had been suspected by the police of having committed the robbery.

It is certainly not unusual for crimes to be committed in the presence of persons of questionable character and certainly it is within the purview of a trier of fact, such as the jury in the case at bar, to take these factors into consideration in weighing such testimony from such persons. However, it is not within the purview of this Court sitting as an appellate tribunal to second-guess or reweigh the evidence. Finch v. State (1967), 249 Ind. 122, 12 Ind. Dec. 22, 231 N. E. 2d 45; Byrd v. State (1962), 243 Ind. 452, 185 N. E. 2d 422.

The appellant also claims that the testimony of Officer Scott was confused and contradictory with regard to the identity of the assailant in the alleged crime in that he first described Robert “Speedy” Glidden as the assailant and then after further conversation with the Prosecuting Attorney testified that it was the appellant who was the assailant. This again in view of all of the evidence and attendant .circumstances was a matter for the trier of fact and is not enough to justify this Court’s setting aside of the verdict in view of all of the evidence in this case.

Appellant also attempted to submit evidence of alibi; however, here again this was a matter of conflicting evidence for the determination of the jury, which under the above authorities will not be weighed by this Court.

We find no reversible error in this case. The trial court is in all things affirmed.

Arterburn and Hunter, JJ., concur; Jackson, J., dissents with opinion in which DeBruler, C. J., concurs.