Lottie v. State , 262 Ind. 124 ( 1974 )

Dissenting Opinion'

Arterburn, C.J.

I dissent from the majority opinion because I feel it in effect usurps the fact-finding prerogatives of the jury or the trial court. The Constitution gives the fact-finding duties to them and the trial court, not to us as a court of appeals. Whether or not the evidence is believable or is circumstantial which we would not believe is not for us to determine, but rather for those who saw the witnesses, their demeanor on the witness stand and heard the tone of voice in which they made their answers. Identity is a question of fact. We, on appeal, have no right to substitute our opinion as to a fact for that of the jury or the trial court.

Givan, J., concurs.

Note.—Eeported at 311 N.E.2d 800.