Burnett v. State, 569S102

• Decision Date: 24 February 1970
• Docket Number: No. 569S102,569S102
• Citation: 253 Ind. 520,255 N.E.2d 529
• Parties: Ashton E. BURNETT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 529

255 N.E.2d 529

253 Ind. 520

Ashton E. BURNETT, Appellant, v. STATE of Indiana, Appellee.

No. 569S102.

Supreme Court of Indiana.

Feb. 24, 1970.

Rehearing Denied April 3, 1970.

Patrick J. Hadler, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John B. Ramming, Deputy Atty. Gen., for appellee.

HUNTER, Chief Justice.

Appellant was charged by affidavit with the crime of auto banditry. Trial without a jury in the Marion County Criminal Court, Division One, resulted in appellant's conviction and sentence to the Indiana State Prison for not less than one (1) nor more than five (5) years.

Looking first to the evidence most favorable to the appellee and all inferences to be reasonably drawn therefrom, we note the occurrence of the following events. At approximately 11:00 o'clock P.M. on December 9, 1967, the janitor at Jack Kidwell Electric Co., Inc. noticed two men attempting to break into the building. He immediately called the police who arrived within minutes and apprehended the men, one of whom was appellant. Backed up next to the building was found an automobile with its trunk open; the evidence indicated that the car had not been there earlier in the evening. In the area were found various articles including a crowbar and large screwdriver on the window ledge of the window from which the men were allegedly attempting to enter the building.

Appellant raises several points for our consideration, the first of which is that the decision of the trial court is contrary to law in that the affidavit fails to charge a crime and is thus a nullity. The affidavit striking the caption by which appellant was charged reads as follows:

'BE IT REMEMBERED, That, on this day before me, NOBLE R. PEARCY Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came WILLIAM W. WHITE who, being duly sworn, upon his oath says that ASHTON E. BURNETT and JOHN MARTIN YOUNG on or about the 9th day of DECEMBER, A.D.1967, at and in the County of Marion in the State of Indiana, did then and there unlawfully, feloniously and burglariously attempt to break and enter into the building and structure of JACK KIDWELL ELECTRIC CO., INC., a corporation, then and there situate at 1331 NORTH CAPITOL AVENUE, City of Indianapolis, County of Marion, State of Indiana, which said building and structure was not a place of human habitation, with the intent to commit a felony therein, to-wit: to unlawfully and feloniously and knowingly obtain and exert unauthorized control over property of said JACK KIDWELL ELECTRIC CO., INC., a corporation, and to deprive said JACK KIDWELL ELECTRIC CO., INC., a corporation, permanently of the use and benefit of said property, and at said time and place had on or near the premises whereon said felony was so attempted by them an automobile, by the use of which they intended to escape, then and there being . . . contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

The statute under which appellant was convicted appears at Ind.Ann.Stat. § 10--4710 (1969 Supp.) and reads in the following terms:

'If any person or persons shall commit or attempt to commit a felony, having at the time on or near the premises where such felony is attempted or committed, an automobile, motorcycle, aeroplane, or other self-moving conveyance, by the use of which he or they escape, attempt to escape or intend to escape, or having attempted or committed such felony, he or they seize an automobile, motorcycle, aeroplane, or other self-moving conveyance, by the use of which he or they escape or attempt to escape, he, they and each of them shall be guilty of automobile banditry, and, upon conviction thereof, shall be imprisoned in the state prison for not less than one (1) year nor more than five (5) years.'

It is appellant's contention essentially that the affidavit is not sufficient wherein it sets out the felony from which he was attempting to escape, since it fails to apprise appellant of the specific offense which the state claims he intended to commit. Apparently this argument arises from the state's failure to include the words with intent in that portion of the affidavit describing the offense of burglary, to-wit: '* * * and (with intent) to deprive said Jack Kidwell Electric Co., Inc., * * *'

Although we do not deem such an omission in this particular case on a charge of auto banditry to be fatal (see Bays v. State (1959), 240 Ind. 37, 159 N.E.2d 393.) Appellant cannot now be heard to raise the issue, he having failed to object to the form of the affidavit prior to the instant appeal. This Court has often held that the sufficiency of an indictment or affidavit cannot be challenged initially on appeal but such question must be presented first to the trial court. Turner v. State (1968), Ind., 233 N.E.2d 473; Chambers, Griffith v. State (1966), 247 Ind. 445, 215 N.E.2d 544; Garland v....