Wincel v. State , 251 Ind. 498 ( 1968 )

Arterburn, J.

This is an appeal from a conviction of the appellant of second degree burglary. The only question raised on appeal is that the evidence is not sufficient to sustain the finding of guilty, and this centers about the fact that the testimony of the accomplice was the only evidence that implicated the appellant. The accomplice, Thomas Cook, gave his age as 16 years and that he lived at the Father Gibault’s School for Boys at the time of the trial. He testified that he and the appellant planned the burglary of an Indianapolis public school; that he went to the appellant’s home on December 7, 1966, and the appellant drove the car to the school building located at 2815 English Avenue, Indianapolis, Indiana. The appellant waited in the car while Cook broke into the school building and was arrested by the police, who arrived on the scene shortly after the break-in. The appellant was not apprehended at the time, but was implicated by Cook in his conversations with the police.

The appellant contends that the testimony of an accomplice must be viewed with caution; that there was no corroboration of the prosecuting witness’s testimony linking the appellant with the crime, and that the prosecuting witness was a juvenile delinquent. It is argued that appellant’s presence at or near the public school building must be proved “beyond a reasonable doubt” and that appellant’s intent to commit a felony must be “proved beyond a reasonable doubt.” With all these contentions we must agree, but the proof and standards referred to are those which take place in the trial court — not on appeal.

Although the evidence may be meager, we may look only to that which is most favorable to the state upon review in this Court. Ponos v. State (1962), 243 Ind. 411, 184 N. E. 2d 10; Bush v. State (1968), 251 Ind. 84, 237 N. E. 2d 584.

We may not weigh the evidence or determine the credibility of a witness on appeal. Stock v. State (1966), 247 Ind. 532, 219 N. E. 2d 809.

Nor do we on appeal weigh the evidence to determine whether or not, in our opinion as judges sitting on this Court, the proof is beyond a reasonable doubt. Reasonable doubt is one for the trier of the facts — not for the judges of a court of appeals. The triers of the fact see the witnesses, how they act and their reactions to questions in the courtroom. It has been said many times that because these factors cannot be brought into a court record, they become imponderable for the consideration of a court of appeals.

Recently, in Walker v. State (1967), 249 Ind. 551, 224 N. E. 2d 45, 46, this Court said: (Jackson, J.)

“This Court has repeatedly held that it will not weigh the evidence, but will consider that evidence most favorable to the State when reviewing the issue of the sufficiency of evidence.”

and again this Court has said:

“It is amazing that so many appellants come to this Court relying on the grounds under discussion here, when it is well settled that this Court does not weigh the evidence nor will it determine the credibility of witnesses.” Rice v. State (1967), 248 Ind. 200, 223 N. E. 2d 579, 582.

The motion for a new trial only raised the question of the sufficiency of the evidence and that it was contrary to law. It did not raise as alleged error any motion to discharge. That question is not before us on appeal. However, the motion to discharge was made to the trial court at the close of state’s evidence, and was in all respects nothing more than a demurrer to the evidence in which the evidence most favorable to the state is admitted for the purpose of the motion. In other words, it has the same legal affect as a motion for a directed verdict made at the close of the state’s evidence in a trial before a jury. At that time the court looked at the evidence most favorable to the state. In 28 I. L. E., Trial, § 132, it is stated:

“A motion for a directed verdict is in the nature of, or equivalent to, a demurrer to the evidence, and it admits all the facts of which there is any evidence, and all reasonable inferences which can be drawn from the evidence.”

It appears, therefore, that the trial judge was correct in the position he took with reference to the motion to discharge, even though the ruling thereon was not raised in the motion for a new trial and is not before us as the dissenting opinion assumes.

For the reasons stated, neither the credibility of the witness nor the weight of the evidence may be considered by this Court on appeal as long as the evidence supports the verdict.

The judgment of the trial court is affirmed.

Lewis, C.J., and Hunter and DeBruler, JJ., concur. Jackson, J., dissents with opinion.