DocketNumber: 3-275A19
Citation Numbers: 339 N.E.2d 118, 167 Ind. App. 428
Judges: Garrard, Staton
Filed Date: 12/30/1975
Status: Precedential
Modified Date: 8/26/2023
— Donald Smith and Delilah Guire were charged with theft
(1) Was there sufficient independent evidence to establish the corpus delicti for the purpose of admitting into evidence Smith’s extrajudicial confessions ?
(2) Was the introduction into evidence of Smith’s confession to the police, made under promise of no prosecution, reversible error?
(3) Was there sufficient evidence that Goldblatt Brothers, Inc., was the owner of the goods, as alleged in the indictment?
(4) Was there sufficient evidence of probative value from which the trier of facts could have reasonably inferred that Delilah Guire was guilty beyond a reasonable doubt ?
We conclude that there was sufficient evidence of the corpus delicti to corroborate Smith’s extrajudicial confessions. We conclude that any error in the admission of Smith’s confession statement to the police was harmless. We conclude that the
We conclude that there is not sufficient evidence of probative value to support a reasonable inference of Guire’s guilt beyond a reasonable doubt. We reverse Guire’s conviction.
L
The Evidence
Patrolman Kenneth Pence of the Hammond Police Department testified that in the early morning hours of June 4, 1973, he was walking a beat in downtown Hammond, Indiana. Pence approached the Goldblatt Brothers Store, where he knew that Smith (also a City policeman) was working as a night guard. The store was not open for business, but Pence knocked on the door and was admitted by Smith. Pence left soon after he arrived, but he returned a few hours later. When he returned, there were several people in the store, one of who was Guire, seated around a table in the cafeteria area. Shortly after he returned, Pence saw Smith, Guire, and one other person carry merchandise, including two large, heavy boxes, out of the store and place it in Smith’s car. Smith then drove away. The person helping remove the merchandise stated to Pence that he “didn’t know that air conditioners could be that heavy.” A nonparticipant sitting at the table with Pence asked Pence “if it bothered [him] to see what was going on in front of [him].”
Barbara Divich was in charge of security at the Goldblatt Brothers Store. She testified that as the result of a routine inventory check she found that two Admiral air conditioners had disappeared from the store sometime between May 27, 1973, and June 7,1973.
' Roland Glick, the District Loss Prevention Supervisor for Goldblatt Brothers Corporation, testified that he heard through an intermediary that Smith had taken two air conditioners
“On the 6 day of June 1973 at the hour of during the night while working at Goldblatt Bros. Inc., 5206 Hohman, Hammond, Inc. [sic], I, Donald J. Smith, while working night watchman on approx. 6-6-73 I took from the Store 2 Admiral Air Conditioners (10,000) 2 8 Trk. Tape Players and one Calculator. I have returned above items except 1 of the tape players which I will pay for; a total of $29.95 plus tax which is $31.15.
Donald J. Smith [signed] ”
Charles Mac of the Hammond Police Department talked to Smith on June 28, 1973, in the course of the police investigation of the theft at Goldblatts. Smith gave a statement to the police confessing that he had taken an air conditioner from the Goldblatt store in early June 1973 while working at a night watchman.
II.
Corpus Delicti
Smith contends that inadmissible evidence was heard in the attempt to prove the corpus delicti and that, without this inadmissible evidence, there was no independent proof of the corpus delicti to corroborate his extrajudicial confessions.
Either before or after an extrajudicial confession is admitted in evidence, there must be evidence independent of
In the present case, the State established the corpus delicti through the testimony of Kenneth Pence, Barbara Divich, and Roland Glick. Pence testified that in the middle of the night of June 4, 1973, well beyond business hours, he observed Smith, Guire, and a third party carry two large, heavy boxes from Goldblatt Brothers Store to Smith’s station wagon. Immediately thereafter, one of the accomplices commented that he didn’t know that air conditioners could be that heavy. A nonparticipant asked Pence if it bothered him to see what was going on. Divich testified that she made a routine inventory check on June 7, 1973, which disclosed that the two air conditioners were missing from the store. Glick testified that he met Smith at Divich’s house on June 22, 1973, and Smith turned over to Glick’s custody two Admiral air conditioners. We conclude that, for the purpose of admitting into evidence Smith’s extrajudicial confessions, there was sufficient proof of the corpus delicti — the theft of two air conditioners from the Goldblatt Brothers Store in early June 1973.
Hearsay is defined as follows:
“Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” McCORMICK’S HANDBOOK OF THE LAW OF EVIDENCE § 246, at 584 (2d ed. E. Cleary 1970), quoted in Pennebaker v. State, supra; Wells v. State (1970), 254 Ind. 608, 261 N.E.2d 865.
In Pennebaker v. State, supra, a police officer testified that a certain transmission had come from a specific automobile. He stated that his conclusion was based on the identity of certain numbers embossed on the transmission and on the car. He explained that his knowledge of the significance of those numbers came from representations of a police specialist who inspected the transmission, conversations with car dealers, and reading about it. None of the officer’s reading materials were introduced into evidence, and none of the people the officer talked to testified. The officer was not qualified as an expert in the numbering system used by car manufacturers. The Court held:
“The only reasonable inference that can be made is that the sheriff’s testimony was offered as evidence of the truth of the facts asserted to him by the police specialist and the car dealers. He was merely acting as a conduit for information possessed by them. Therefore, the sheriff’s testimony was inadmissible as hearsay evidence. The value*435 of the sheriff’s testimony would depend upon the veracity and competence of the police specialist and car dealers who were not under oath and did not testify at the trial subject to cross-examination.” 256 Ind. at 531, 270 N.E.2d at 760.
In the present case, Divich, as head of security for the Goldblatt Brothers Store, had the responsibility of performing regular inventory checks. In the course of these checks, she reviewed invoices, sales receipts, and lay-away receipts, and she also counted items pf merchandise in various storage areas of the store. She was not a conduit of information from someone absent from the court when she testified that her June 7, 1973, inventory check revealed two missing air conditioners. She was a source of information not possessed by anyone else. Smith’s objection is that Divich relied upon hearsay documents in reaching her conclusion. Although the invoices and receipts she relied upon were not offered into evidence, these documents could have been received in evidence under the business récords exception to the hearsay rule — they were documents prepared and received in the regular course of business, the participants in their preparation could not be identified, and Divich would have been a qualified witness to lay a foundation for their admissibility. See McCORMICK’S, swpra, § 312. Since the documents could have been received in evidence without a hearsay objection, Divich’s testimony in reliance upon these documents was likewise not objectionable as hearsay.
III.
Voluntariness of Confession
Smith contends that the confession statement given to the Hammond Police Department should not have been admitted into evidence because the confession was extracted by the improper influence of a promise of no prosecution and, thus, was not free and voluntary. See Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Smith, however, makes no argument that the confession he gave to Glick was involuntary. This confession, together with proof of the corpus delicti, was amply sufficient to sustain Smith’s conviction. The second confession to the police was merely cumulative. Thus, we need not determine whether there was error in the admission into evidence of Smith’s confession to the police. Any error was harmless beyond a reasonable doubt under the facts of this case. See Larimer v. State (1975), 163 Ind. App. 673, 326 N.E.2d 277; Moss v. State (1975), 165 Ind. App. 502, 333 N.E.2d 141.
IV.
Ownership of the Merchandise
Smith and Guire contend that the State failed to prove that Goldblatt Brothers, Inc., was the owner of the allegedly stolen merchandise. It is well-settled that the name of the owner of property alleged to have been stolen is a material allegation and must be proved beyond a reasonable doubt in order to sustain a conviction. Buckley
“ ‘Owner’ means a person, other than the actor, who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the actor has no authority to obtain or exert the complained of control over the property. An inference . . . that an owner is a corporation, organized and existing as such shall be drawn from any evidence that such owner is known by reputation to be a corporation or is held out to the public to be a corporation, or is operating under a name indicating or implying that such owner is a corporation.” IC 1971, 35-17-5-13(12), Ind. Ann. Stat. § 10-3040(12) (Burns Supp. 1975).
From our examination of the evidence and the reasonable inferences therefrom, we conclude that ownership of the air conditioners by Goldblatt Brothers, Inc., was established beyond a reasonable doubt. The witnesses referred to the store variously as Goldblatt Brothers Corporation, Goldblatt Brothers Department Store, Goldblatt Brothers, and Goldblatts. The statute permits an inference of corporate status to be drawn from “any evidence that such owner is known by reputation to be a corporation ... or is operating under a name indicating or implying that such owner is a corporation.” Id. The reference to Goldblatts as a corporation sufficiently established Goldblatt’s corporate status, as alleged in the indictment.
The evidence and the reasonable inferences therefrom show that Goldblatt Brothers, Inc., was in possession of the property within the department store building. Two large, heavy boxes
y.
Sufficiency of the Evidence to Sustain Guire’s Conviction
Guire contends that the evidence was insufficient to sustain her conviction for theft.
Hoffman, J., concurs; Garrard, J., concurs in. part and dissents in part with opinion.
. IC 1971, 35-17-5-3(1) (a) and (2) (a), Ind. Ann. Stat. §10-3030 (1) (a) and (2) (a) (Burns Supp. 1975).
. Smith was not placed under arrest at this time. He did, however, sign a waiver of rights form before making the statement. Smith was later indicted by the Lake Grand Jury.
. An objection to Divich’s testimony under the best evidence rule would seem more appropriate. When the contents of a document are offered for proof of their accuracy, the document itself is the best evidence, and secondary evidence is inadmissible unless some exception is satisfied. This, however, was not argued. Further, it appears that Divich’s testimony would have been competent. In Hilligoss v. State (1970), 253 Ind. 443, 255 N.E.2d 101, a similar case, a woman was robbed in a store she operated and was called to testify about the amount of money taken. The woman relied upon the information contained on a cash register tape. The court held that, since there was no attempt to prove what was on the tape, but instead how much money was missing, the woman was a competent witness. Similarly, in the present case, there was no attempt to prove what was in the invoices and receipts, but instead what merchandise was missing. It was within the
. In the summary of the argument portion of Guire’s brief, appellant adequately informs this Court that the contention of error on appeal is that the evidence is insufficient on each element of the offense to support her conviction. To refuse to reach Guire’s insufficiency of the evidence claim by invoking Indiana Rules of Procedure, Appellate Rule 8.3 (A); (7), as suggested by the dissenting opinion, merely invites future post-conviction proceedings and results in piecemeal appellate review. Guire has substantially complied with the requirements of AP. 8.3(A)(7),. and we have reviewed the sufficiency of the evidence on each element of the offense of theft.