Summary
concluding evidence sufficient to identify vehicle that was allegedly stolen where victim owned 1957 yellow Chevrolet, police officer testified that defendant was driving muddied, 1957 yellow Chevrolet with damage including a hole in the grill, missing mirror, and broken radio aerial, and car owner testified that he reported car stolen and the next time he saw it, it had front end damage, was splattered with mud, and the mirror and aerial were broken off
Summary of this case from Pryor v. StateOpinion
No. 29,730.
Filed June 23, 1959.
1. CRIMINAL LAW — Vehicle Taking — Identification of Vehicle — Sufficiency of Evidence. — The record shows that the owner of a Chevrolet convertible, with appellant, drove the car to a filling station, that appellant asked permission to sleep in the car after owner arranged to leave the car there all night, that later appellant was arrested for drunken driving, that at the time of the arrest the car was damaged with a hole in the grill, the mirror missing, radio aerial broken off and the car was muddy, that appellant stated that he stayed in the car until he got it out of the filling station, that the owner testified that the next time he saw his car after leaving it at the filling station it was damaged on the front end and was splattered with mud, the mirror was broken off as was the aerial and it is held on appeal that the evidence was sufficient to establish that the car appellant had when he was arrested was the same car the owner had granted him permission to sleep in and the car was sufficiently identified to sustain a conviction for vehicle taking. p. 595.
2. CRIMINAL LAW — Adequate Representation by Counsel — Prejudicial Error. — Appellant contends that he was not adequately represented by counsel during the trial and cites several instances thereof but the court on appeal denies the merit of such contentions for the reason that there is no showing that the appellant was prejudiced thereby in any respect. p. 595.
3. CRIMINAL LAW — Adequate Representation by Counsel — Reversible Error. — Frequently, even the best of attorneys make decisions during the course of a trial which later may appear to have been errors in judgment. The Supreme Court cannot "second guess" a trial attorney and reverse a case simply because some other attorney might, under the attending circumstances, have pursued a different course. p. 596.
From the Vanderburgh Circuit Court, Ollie C. Reeves, Judge.
Robert C. Arnold, appellant, was convicted of vehicle taking and he appeals.
Affirmed.
John G. Bunner, of Evansville, for appellant.
Edwin K. Steers, Attorney General, Owen S. Boling, Assistant Attorney General and John A. Pushor, Deputy Attorney General, for appellee.
This is an appeal by Robert C. Arnold from a judgment of the Vanderburgh Circuit Court convicting him of the crime of vehicle taking. The cause was tried by the court without intervention of jury and upon a finding of guilty the appellant was sentenced to the Indiana State Prison for a period of not less than one nor more than ten years. The errors assigned are those contained in the motion for a new trial.
The first main contention is that the evidence is insufficient to sustain the decision of the court for the reason that the vehicle alleged to have been taken was not sufficiently identified. For that purpose, we must review briefly the evidence most favorable to the State upon this point.
It shows that on the night of July 12, 1958 Gerald Osborne, the owner of a 1957 Chevrolet Convertible automobile, with the appellant, Arnold, after having some engine trouble, drove in to the Red Bird Filling Station in Evansville, Indiana. Osborne arranged to leave the car at the filling station and the appellant asked permission of him to sleep in the car during the night. When Osborne returned to the filling station the next morning, his car was gone. Later that day a State police officer arrested the appellant for drunken driving and on the stand he testified that the appellant was driving a 1957 yellow Chevrolet. When he questioned the appellant he said it belonged to "a buddy" of his, and gave a name other than that of Osborne, and that the owner had given him permission to sleep in the car the night before and that he took the car out. The officer said he later checked and found that this car was reported stolen. At the time of the arrest the car was damaged, with a hole in the grill, the mirror missing, the radio aerial was broken off and it was muddy. When the appellant took the stand he stated that he and one Miller "stayed in the car until we got a shove and got it out of there" when they woke up the next morning at the filling station. He also stated: "Miller first drove the car and left it and I then drove the car after he left it." and "I was looking for that Red Bird Filling Station" at the time arrested. He further stated that he did not have the consent or permission of the owner to drive the automobile.
Osborne, the owner, testified that he had reported the car stolen; that he gave no one permission to drive it and that when he saw it the next time it was damaged on the front end and was splattered with mud, the mirror was broken off and the aerial broken off.
From this testimony we believe any reasonable person could conclude that the car which the appellant had at the time he was arrested by the State policeman, by his own admission, was 1. the same car that the owner, Osborne, had granted him permission to sleep in the night before. The evidence on this point was sufficient to sustain the decision and judgment of the court
The cases cited by the appellant may be readily distinguished by the facts here presented. Shelby v. State (1951), 229 Ind. 186, 96 N.E.2d 340; Lee v. State (1954), 233 Ind. 176, 118 N.E.2d 115; Billman v. State (1955), 234 Ind. 553, 129 N.E.2d 795.
The second contention made by the appellant is that he was not adequately represented by counsel during the trial. He points out that it was necessary for his present counsel to file an 2. amended or supplemental motion for a new trial. He further contends that there was a failure on the part of the trial counsel to subpoena certain witnesses; a failure to object to certain evidence; to make a motion for a directed verdict by reason of insufficiency of evidence; that there is newly discovered evidence and that a new trial should be granted by reason of newly discovered evidence. We have considered all these contentions and find that there is no merit in them for the reason there is no showing that the appellant was prejudiced thereby in any respect.
The motion for new trial was amended within statutory time and all claimed errors have been presented to this court without prejudice to the appellant. There is no showing that by reason of the failure to subpoena the witnesses in question, evidence could have been produced that would have changed or had any effect on the results in this case. There is no showing that by reason of failure to object to testimony, incompetent testimony was admitted, nor were valid, specific objections set forth thereto. The alleged newly discovered evidence was based upon an affidavit of appellant's father that the prosecuting witness, Osborne, had told a third party, Paul Dean, that he had given the appellant his keys to the automobile on the evening in question. The evidence stated in the affidavit was nothing more than hearsay by the father.
In Hendrickson v. State (1954), 233 Ind. 341, 344, 118 N.E.2d 493, we said:
". . . Frequently, even the best of attorneys make decisions during the course of a trial which later may appear to have been errors in judgment. 3. This is a natural result of the imperfections of man and are circumstances which cannot be avoided and must be expected. We cannot `second guess' a trial attorney and reverse a case simply because some other attorney might, under the attending circumstances, have pursued a different course." Stice v. State (1950), 228 Ind. 144, 89 N.E.2d 915; Dowling et al. v. State (1954), 233 Ind. 426, 118 N.E.2d 801; Lunce, Reynolds v. State (1954), 233 Ind. 685, 122 N.E.2d 5.
The judgment is affirmed.
Achor, C.J., Bobbitt, Jackson and Landis, JJ., concur.
NOTE. — Reported in 159 N.E.2d 278.