Bradley v. State

• Decision Date: 15 January 1964
• Docket Number: No. 30381,30381
• Citation: 244 Ind. 630,195 N.E.2d 347
• Parties: Hugh Frederick BRADLEY, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 347

195 N.E.2d 347

244 Ind. 630

Hugh Frederick BRADLEY, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 30381.

Supreme Court of Indiana.

Jan. 15, 1964.

Don R. Money, Money, Orr, Bridwell & Fink, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., of Indiana, Edgar S. Husted, Deputy Atty. Gen., Indianapolis, for appellee.

LANDIS, Chief Justice.

Appellant was charged with second degree burglary and after a trial by the court was convicted and sentenced to the Indiana State Prison for a term of two to five years.

Appellant filed motion for new trial contending the decision was contrary to law and not sustained by sufficient evidence.

The evidence favorable to appellee was in substance, as follows:

Two police officers and the owner of a store (Rap's Jewelry and Loan Company) located at 326 Indiana Avenue, indianapolis, Indiana, were called to the premises shortly after midnight, May 19, 1962, in response to a burglar alarm. They noticed the large front window was broken and the owner stated it was not broken the evening before when he closed the store. The two investigating officers quickly found appellant standing across the street at the rear of 327 Indiana Avenue, next to a broken display case of knives. The store owner identified the broken case as one from his store. He also identified a straight razor taken from appellant's pocket as being like those he sold in the store. The store was owned and operated by Harold Rappaport and his father as a partnership.

Appellant contends the evidence was insufficient as there was no evidence of a 'breaking or entering', nor any evidence that anyone saw appellant break into or enter the premises known as 326 Indiana Avenue, citing Link v. State (1953), 232 Ind. 466, 113 N.E.2d 43. That case, however, involved only an attempted burglary in which the appellant was arrested by the officers before he had completed breaking into the store in question. The Court there reversed the judgment of conviction, stating the term 'breaking' used in the burglary statute requires such action of the defendant as would, without additional effort, have made an entry possible. In that case there was no 'breaking', much less a breaking and entering, as required by clause (b) of the burglary statute. ¹

In the case before us the prosecution depended upon circumstantial evidence to establish the guilt of the accused. There are numerous Indiana cases sustaining burglary convictions upon circumstantial evidence. Dennison v. State (1952), 230 Ind. 353, 356, 103 N.E.2d 443, 444; White v. State (1948), 226 Ind. 309, 311, 79 N.E.2d 771, 772; Rucker v. State(1948), 225 Ind. 636, 638, 77 N.E.2d 355, 356; 2 Ewbanks Ind.Crim.Law, Symmes Ed., § 821, p. 498. The White case, supra, Specifically upheld such a conviction without direct evidence of breaking and entering by the accused. Decisions of this state have also held that unexplained, exclusive possession of recently stolen property constitutes a circumstance from which a court may draw an inference of guilt. Green v. State (1960), 241 Ind. 96, 99, 168 N.E.2d 345, 346; Brown v. State (1958), 239 Ind. 184, 194, 154 N.E.2d 720, 724; Mims et al. v. State (1957), 236 Ind. 439, 444, 140 N.E.2d 878, 880.

In our judgment the evidence in this case that the large front window of the store was found broken shortly after midnight, in response to a burglar alarm, coupled with the discovery of appellant in the immediate vicinity standing next to a broken display case of knives and with a straight razor in his pocket, each item being identified as being the same as or like those sold in the store, and his possession of the same being unexplained was sufficient to sustain the jury's verdict of guilty.

Appellant next argues that the State failed to prove the ownership of the building at 326 Indiana Avenue, where the burglary was allegedly committed.

The State alleged in the affidavit that appellant broke and entered 'the building and structure of Harold Roppaport [sic]'. However, at the trial the State proved Rappaport was in rightful possession of the building and owned a business therein known as Rap's Jewelry and Loan Company without showing specifically that he held title to the building.

The crime of burglary is in reality an offense against the possession of property and not necessarily against the ownership thereof. As stated in 12 C.J.S. Burglary § 26, p. 685:

'* * * the specific ownership of a building involved * * * is not an essential element of the offense, and title, as far as the law of burglary is concerned, follows the possession, and possession constitutes sufficient ownership as against the burglar. For the purposes of the offense the occupant of the premises is the owner, so that the lessor of a house may be guilty of burglary in breaking and entering the house while it is occupied by the lessee.' (Emphasis added.)

It will be noted that the statute defining second degree burglary states nothing specifically as to ownership, it being merely provided:

'(b) Whoever breaks or enters into * * * any building or structure other than a dwelling-house or place of human habitation, with the intent to commit a felony * * *', etc. Burns' § 10-701 (1956 Repl.), Acts 1941, ch. 148, § 4, p. 447.

The case of Radley v. State (1910), 174 Ind. 645, 92 N.E. 541, is very similar to the case before us. There the indictment charged burglarious entry into 'the dwelling-house of William E. Janes'. On appeal some question was raised as to whether Janes was the actual owner or only a tenant, and this Court stated at p. 648 of 174 Ind., and p. 542 of 92 N.E.:

'* * * It was sufficient, however, on the trial, in order to establish the charge in the indictment that the house...