Smith v. State , 254 Ind. 401 ( 1970 )

254 Ind. 401 (1970) 260 N.E.2d 558

SMITH
v.
STATE OF INDIANA.

No. 268S19.

Supreme Court of Indiana.

Filed July 24, 1970.

Frederick B. Robinson, of Indianapolis, for appellant.

John J. Dillon, Former Attorney General, John Price, Deputy Attorney General, for appellee.

DeBRULER, J.

This is an appeal from a conviction of second degree burglary following a trial by jury in Division One of the Criminal Court of Marion County.

The crime of second degree burglary is defined by Acts 1941, ch. 148, § 4, being Burns Ind. Stat. Ann. § 10-701:

"(b) Whoever breaks and enters into ... or any building or structure other than a dwelling house or place of human habitation, with the intent to commit a felony therein, shall be guilty of burglary in the second degree, and upon conviction shall be imprisoned not less than two (2) years nor more than five (5) years and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period: Provided, however, That the court shall have power to suspend prison sentence and place the defendant on probation in accordance with the existing law."

Appellant filed a motion for new trial which was overruled and which brings about this appeal. Appellant urges two grounds for reversal: 1) The verdict of the jury is not sustained by sufficient evidence. 2) The verdict of the jury is contrary to law. Since both grounds of the above motion raised substantially the same questions, the appellant grouped the allegations together in his argument and this Court will do likewise in this opinion.

The appellant herein is challenging the sufficiency of the evidence. The appellant alleges that the appellee failed to prove a necessary element of the crime of Second Degree Burglary, the element being the "intent to commit a felony therein." In reviewing this allegation this Court will not weigh the evidence nor resolve questions of credibility, but will look to that evidence and the reasonable inferences therefrom which support the verdict of the trial court. Glover v. State (1970), 253 Ind. 536, 255 N.E.2d 657.

The conviction will be affirmed if from that viewpoint there is evidence of probative value from which a reasonable trier of fact could infer that the appellant was guilty beyond a reasonable doubt. Fair v. State (1969), 252 Ind. 494, 250 N.E.2d 744.

The evidence shows that on January 11, 1969, at approximately 2:00 a.m. a police radio call directed certain Indianapolis police officers to the Tutwiler Cadillac Building at 2330 North Meridian, Indianapolis, Indiana. This call was sent in response to an alert from the building's burglar alarm system. Among the police officers responding to the call were Police Sgt. Leon Chisley and Officer Richard Combs.

Sgt. Chisley testified that upon his arrival at the scene he went to the rear of the building where he found a window broken in an overhead door and a smaller door within the overhead door was found open. He entered the building with Officer Humblin and found two Cadillac cars parked in front of the garage door with the motors running. After admitting Officer Combs through another entrance, the three officers searched the premises. This search revealed one Herman Steve Oliver hiding under a car and the appellant hiding in the upper portion of a closet. The appellant and Oliver were promptly placed under arrest for pre-burglary.

Officer Combs testified that as he approached the door on the North side of the building, the appellant appeared at the door and after seeing Officer Combs he ran back from the door within the building.

We believe that there was sufficient evidence of probative value to warrant the determination that the appellant had entered the building with intent to commit a felony.

Judgment affirmed.

Hunter, C.J., Arterburn, Givan, and Jackson, JJ., concur.

NOTE. — Reported in 260 N.E.2d 558.