Summary
In Coffer v. State (1958), 239 Ind. 22, 154 N.E.2d 371 there were statements made by the appellant which were produced in evidence, showing an intent to break into the schoolhouse in question.
Summary of this case from Melvin v. StateOpinion
No. 29,659.
Filed December 10, 1958.
1. CRIMINAL LAW — Intent to Commit a Specific Act — Presumption from Commission of Act. — Criminal intent to commit a specific criminal act may be presumed from the voluntary commission of the act. p. 23.
2. CRIMINAL LAW — Entering with Intent to Commit a Felony — Evidence Establishing Prerequisite Intent. — Testimony of an accomplice that defendant stated they should break into the school house which they did and then stole a large quantity of goods is sufficient to establish the prerequisite intent in the instant charge of entering with intent to commit a felony. p. 23.
3. EVIDENCE — Criminal Law — Testimony of Accomplice — Sufficient for Conviction without Corroboration. — The testimony of an accomplice may be sufficient to convict without corroboration. p. 24.
4. TRIAL — Conflicting Evidence — Witness — Weighing Evidence — Criminal Law. — Where a witness was produced first by the State and then by the defense as an alibi witness which resulted in conflicting testimony, it was the right and duty of the trial court, who saw and heard the witness, to determine the weight, if any, to be given to the testimony of this witness. p. 24.
From the Davies Circuit Court, Philip D. Waller, Judge.
Ernest Coffer, appellant, was convicted of entering a school house with intent to commit a felony therein and he appeals.
Affirmed.
Adeline C. Lehman, of Washington, for appellant.
Edwin K. Steers, Attorney General, and Merl M. Wall, Deputy Attorney General, for appellee.
Appellant was found guilty of entering a school house with intent to commit a felony therein, under § 10-704, Burns' 1956 Repl. [Acts 1941, ch. 148, § 5, p. 447.]
Appellant asserted as grounds for new trial, and here contends, that the verdict was not sustained by sufficient evidence. In particular appellant contends first, that there was not sufficient evidence to prove that appellant participated in the larceny of the building. Furthermore, he asserts that, assuming he participated in the larceny, there is no evidence to support the allegation that he entered the building with that prerequisite intent.
We consider the issue of intent first. Criminal intent to commit a specific criminal act may be presumed from the voluntary commission of the act. 22 C.J.S., Criminal Law, § 34, p. 1, 2. 92. Bleiweiss v. State (1918), 188 Ind. 184, 119 N.E. 375, 122 N.E. 577. The testimony of Jaret Keith, an accomplice, was that "after we got in the car . . . he (appellant) made the statement that we should go over and break into the school house and so we did." That he and appellant actually drove to the school house, entered through a window, took off the door of a storage room and stole a large quantity of "surplus foods," which they took to the apartment of appellant's girl friend. This evidence was sufficient to prove the prerequisite intent, providing the testimony could be believed.
Next we consider appellant's contention that his participation in the offense was not supported by evidence sufficiently convincing or credible to sustain the verdict. Appellant 3. argues that the evidence consists only of the testimony of an accomplice which, in itself, should be accepted with caution, and that his testimony was incapable of belief beyond a reasonable doubt because of the conflicts in his testimony with that of other witnesses. In Indiana the testimony of an accomplice may be sufficient to convict without corroboration. Ingram v. State (1951), 230 Ind. 25, 99 N.E.2d 410.
However, in this case the evidence of the accomplice is not without corroboration. Although she later denied it, appellant's girl friend testified that appellant and his accomplice left her house together on or about the night of the burglary and that later appellant and the accomplice had the same type of foodstuffs at her apartment building. Later the accomplice was heard to tell appellant to "get rid of it," which he did. This testimony provided substantial evidence in support of the testimony of the accomplice.
We have carefully examined the transcript of the evidence and conclude that it supports the verdict. Although there are minor conflicts in the evidence, there are no significant 4. conflicts in the testimony, except in the testimony of appellant's girl friend who was produced first on behalf of the state and later by the defense as an alibi witness. Faced with this conflicting testimony, it was the right and duty of the trial court, who saw and heard the witness, to determine the weight, if any, to be given to the testimony of this witness. Schmittler v. State (1950), 228 Ind. 450, 93 N.E.2d 184; Bolton v. State (1945), 223 Ind. 308, 60 N.E.2d 742.
Judgment is therefore affirmed.
Landis, C.J., Arterburn, Bobbitt Emmert, JJ., concur.
NOTE. — Reported in 154 N.E.2d 371.