Grimes v. State , 244 Ind. 68 ( 1963 )

244 Ind. 68 (1963) 190 N.E.2d 663

GRIMES
v.
STATE OF INDIANA.

No. 30,235.

Supreme Court of Indiana.

Filed June 6, 1963.

Robert F. Craven and John T. Healey, of Indianapolis, for appellant.

Edwin K. Steers, Attorney General, and David S. Wedding, Deputy Attorney General, for appellee.

ACHOR, J.

Appellant was found guilty of robbery. In his motion for new trial, he asserted that the finding of the court is not sustained by sufficient evidence and is contrary to law. In support of the motion, and as cause for appeal, it is argued that the appellant was not sufficiently identified beyond a reasonable doubt, so as to sustain a conviction.

Appellant concedes that this court, as a court of review, will not weigh the evidence and, as a general rule, will consider only the evidence most favorable to the state and the reasonable and logical inferences that may be drawn therefrom. However, appellant contends that the testimony of the witnesses for the state, as to the identification of the appellant, is in irrefutable conflict with other established facts and, therefore, is not of probative value and is incapable of supporting the state's burden of proof upon this issue.

What is the evidence, as related to the identification of appellant? At the trial, three eyewitnesses identified the appellant as the person who committed the crime. However, appellant argues that the identification was irrefutably controverted by the fact that two of those witnesses testified, or at sometime indicated, that the robber had a scar on the right side of his face, whereas, in fact, it was shown that appellant had no scar on his right cheek, but did have one on his right eye. In fact, neither witness testified as to the exact location of the scar — whether it was on the right cheek or the right eye — but only that it was on the right side of the face. The error of appellant's contention is obvious.

Judgment affirmed.

Myers, C.J., Arterburn, Jackson & Landis, JJ., concur.

NOTE. — Reported in 190 N.E.2d 663.