Smart v. State, 30207

• Citation: 190 N.E.2d 650,244 Ind. 69
• Decision Date: 06 June 1963
• Docket Number: No. 30207,30207
• Parties: Robert D. SMART, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 650

190 N.E.2d 650

244 Ind. 69

Robert D. SMART, Appellant, v. STATE of Indiana, Appellee.

No. 30207.

Supreme Court of Indiana.

June 6, 1963.

Clarence R. Mills, Jr., Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Deputy Atty. Gen., for appellee.

MYERS, Chief Justice.

This is an appeal from a judgment entered by the Morgan Superior Court, without the intervention of a jury, wherein appellant was convicted of burglary in the first degree and sentenced to not less than ten nor more than twenty years in the State Reformatory.

The affidavit charges appellant, on the 28th day of August, 1961, with unlawfully breaking and entering into a structure known as the Dr. R. L. Keenan residence, 'which was then and there a place of human habitation,' located near the town of Mooresville, Indiana, with intent to commit a felony, that is, to steal the personal chattels of Dr. Keenan.

First-degree burglary consists of the breaking and entering into 'any dwelling-house or other place of human habitation with the intent to commit any felony therein, or to do any act of violence or injury to any human being, * * *.' Burns' Ind. Stat. § 10-701, 1956 Replacement.

We are presented with the question as to whether the building alleged to have been burglarized was within the meaning of the statute on first-degree burglary. To sustain its burden, the State must prove each essential element of the crime charged. Among these is the need to prove beyond a reasonable doubt that the appellant broke and entered into a place of human habitation or a dwelling house.

The building was situated in a rural community. It was a frame cabin of rustic design used as a summer cottage by Dr. and Mrs. Keenan, who had built it in 1953 or 1954. There were three or four rooms, including a bathroom, a picture window and a screened porch. Mrs. Keenan testified that she and her husband lived in Indianapolis, but that they spent a two or three weeks' vacation and week-ends there. At the time of the break-in, the cabin was unoccupied. The only item taken was a small radio.

In his argument for reversal, appellant contends the premises here in question were neither a dwelling house nor a place of human habitation.

It is to be noted that the offense of burglary has been divided into three degrees. The first degree pertains to any dwelling house 'or other place of human habitation,' and the penalty upon conviction is imprisonment from ten to twenty years. Burglary in the second degree pertains to breaking and entering into cars, boats, or any building or structure other than a dwelling house or place of human habitation, with intent to commit a felony. Penalty upon conviction is imprisonment from two to five years. Burglary in the third degree pertains to breaking into cars, boats, or any building or structure, with intent to commit a misdemeanor, together with the unlawful entry of any enclosed property, for the purpose of stealing growing products and other things. On conviction thereof, punishment is a fine not to exceed $500, with imprisonment on the State Farm not to exceed one year.

The reason for the very stiff penalty for committing first-degree burglary is because of the invasion of one's home. A recent annotation in 43 A.L.R.2d, pp. 834, 835, supplements this explanation, and reads as follows:

'It is evident that the offense of burglary at common law was considered one aimed at the security of the habitation rather than against property. That is to say, it was the circumstance of midnight terror aimed toward a man or his family who were in rightful repose in the sanctuary of the home, that was punished, and not the fact that the intended felony was successful. Such attempted immunity extended to a man's dwelling or mansion house has been said to be attributable to the early common-law principle that a man's home is his castle. The jealousy with which the law guarded against any infringement of this ancient right of peaceful habitation is best illustrated by the severe penalties which at common law were assessed against a person convicted of burglary, even though the enterprise, except for the essential elements of breaking and entering a...