Opinion
Frederick F. McClellan, Muncie, for appellant.
Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.
OPINION OF PETITION FOR REHEARING
LYBROOK, Judge.
Appellant's Petition for Rehearing makes just one contention:
'1. The record in this cause does not show that Summers, Thornburg and another man went back to the farm, picked up a TV set which they took to Jonesboro where they sold it to Mrs. Robert Boothey for $225.00. Mrs. Robert Boothey did not so identify John Summers as one of the men.'
The above purports to be a statement of fact and accuses this Court of mis-stating the record in its opinion, 285 N.E.2d 673. We feel compelled to respond to this statement.
The first sentence of the above quoted statement of appellant's counsel is not true. Counsel, not this Court, is in error as to what the record shows.
Witness, Daryle Duane Thornburg, testified in part as follows:
'A. Well, this one fellow in Muncie, he knowed where he could sell one for us, and I got ahold of him and Johnny and I then went and sold a TV.
Q. Where did you go to sell the TV?
A. Jonesboro. Q. And what did you get for the TV?
A. Two hundred and twenty-five dollars.
Q. What did you do with the two hundred and twenty-five dollars?
A. Give twenty-five of it to Shirley Franklin and us four split--took fifty dollars apiece.
Q. The money was returned then and split four ways, is that right?
A. Right.
Q. Defendant got fifty dollars of it?
A. Yes.'
Witness, Shirley Franklin, testified in part as follows:
'Q. Was John Summers present during the time that you received the television?
A. Yes.'
'Q. Alright. Then what did you do?
A. Well, we went out somewhere to an old barn or
Q. Now, who is 'we'?
A. Me and Daryl Thornburg and John.
Q. Now, John, you're referring to the defendant, John Summers?
A. Yes, sir.
Q. Is he here in the Court Room today?
A. Yes.
Q. Would you tell the Court where he is seated?
A. What?
Q. Where is John Summers seated?
A. Seated right at the table.
Q. Well, there are three men there, which one?
A. Middle one.
Prosecutor: Alright. I'd like the record to show we have an identification of the defendant.
The Court: Let the record show the defendant is sitting in the middle of the table apparently referred to by the witness.
Q. Alright, you said that 'we' went where?
A. Some old barn, I don't know where it was at.
Q. O.K. What did you do when you got there?
A. We picked up a television.
Q. What kind of television was it?
A. It was a color television, I don't know, it was a wood cabinet.
Q. O.K. And what did you do with the television then?
A. Took it to Jonesboro.
Q. Pardon me?
A. Took it to Jonesboro.
Q. Now, who took it to Jonesboro?
A. I did.
Q. By yourself?
A. No.
Q. Who was with you?
A. Johnnie and Daryl.
Q. Alright. Now, what did you do with the television when you got to Jonesboro?
A. Sold it to a Booth, Miss Booth.'
We regret having to laboriously set out the above testimony in detail but feel it necessary in order to state the record correctly.
Appellant's charge being completely unfounded, the Petition for Hehearing is denied.
ROBERTSON, P.J., and LOWDERMILK, J., concur.