Davis v. State, 168

Decision Date28 August 1968
Docket NumberNo. 168,168
Citation251 Ind. 133,239 N.E.2d 601
PartiesWendell Wilkie DAVIS, Appellant, v. STATE of Indiana, Appellee. S 7.
CourtIndiana Supreme Court

Walter A. Cornell, Noblesville, for appellant.

John J. Dillon, Atty. Gen., for appellee.

MOTE, Judge.

The Appellant was charged by affidavit with First Degree Burglary pursuant to Burns' Ind.Stat.Anno. § 10--701, which reads in part as follows:

'Whoever breaks and enters into any dwelling-house or other place of human habitation with the intent to commit any felony therein * * * shall be guilty of burglary in the first degree * * *.'

He was convicted of the lesser included offense of Entering to Commit a Felony, which offense is set out in Burns' Ind.Stat.Anno. § 10--704 and reads in part as follows:

'Whoever enters any dwelling-house, or other place of human habitation * * * with the intent to commit a felony therein, shall, on conviction, be imprisoned for not less than one (1) year nor more than ten (10) years * * *.'

The affidavit read in pertinent part as follows:

'BE IT REMEMBERED, That on this day, before me, Philip R. Correll, Deputy Prosecutor of the 24th Judicial Circuit personally came JAMES EBERT who, being duly sworn, upon his oath, says that WENDELL WILKIE DAVIS on or about the 12th day of August A.D. 1967, (at the County of Hamilton, in the state of Indiana) did then and there unlawfully, feloniously and burglariously break and enter into the apartment of Donald Reynolds, 154 South 8th Street, Noblesville, Hamilton County, Indiana, in which said Donald Reynolds then lived with intent to commit a felony towit to unlawfully take, steal and carry away the personal property of said Donald Reynolds, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

Appellant argues on appeal that the trial court erred in overruling Appellant's Motion for New Trial wherein he alleged that the verdict of the jury was not sustained by sufficient evidence and that the trial court further erred in admitting certain testimony over the Appellant's objection.

More specifically, the basis of Appellant's appeal is that the State failed to prove that the entry was made with intent to commit a felony.

The evidence most favorable to the State reveals that the Appellant was in the Reynolds' home on the night of August 12, 1967. Mrs. Reynolds awoke to find Appellant in a hallway 'going through something'. She awakened her husband and as he was going downstairs, he heard the kitchen window shatter. A neighbor testified that she saw the Appellant standing in the Reynolds' kitchen and saw him dive through the window. The Appellant fled and was later captured and returned to the Reynolds' home where he was identified by the neighbor.

It was further established that Mr. Reynolds' wallet was taken from his trousers that evening, that the Appellant was unknown to Mr. or Mrs. Reynolds, that they did not invite him nor was he present in their home with their consent and that the doors and windows of their house were closed when they went to bed.

Concerning the first error urged by Appellant--failure of the State to prove the essential elements of entry and intent to commit a felony--it must be noted that the offense of which the Appellant was convicted (Entering with Intent to Commit a Felony) does not require a 'breaking'.

Even assuming arguendo that breaking was a necessary element of the offense of which Appellant was convicted, this Court has held that merely opening an unlocked door or window will constitute such breaking. See: Richardson v. State (1966) Ind., 220 N.E.2d 345.

Further, we find no merit in Appellant's contention that the State failed to prove entry. It appears elementary that Appellant's presence in the Reynolds' home presupposes and establishes his entry into same.

We find also that there was sufficient evidence to support the jury's finding that the Appellant entered the Reynolds' home with intent to commit a felony. In arguing to the contrary, the Appellant relies upon Easton v. State (1967) Ind., 228 N.E.2d 6. That case may be distinguished from the facts such as those found in the instant case. In Easton, supra, the defendant was discovered in another's apartment watching television. The door lock had been broken and a record player was found unplugged, with records stacked upon it. The defendant left leisurely, offering to pay for the lock. In holding that these facts were insufficient to sustain a conviction requiring proof of breaking and entering with intent to commit a felony, this Court said at page 12 of 228 N.E.2d:

'The intent being a primary element of the offense * * * we are of the opinion that such an issuable fact may not be inferred from proof alone of the breaking and entering.'

In reaching the decision, the Court emphasized the operative facts involved: that the defendant knew the owner of the apartment, that he was sitting watching television, that he left leisurely and that he made no attempt to flee or hide.

A recent case, Kondrup v. State (1968) Ind., 235 N.E.2d 703, distinguishes the Easton, supra, result from those cases in which evidence other than that of breaking and/or entry alone is present. In Kondrup, supra, the defendant was found sitting in a bait shop and when apprehended was loading a gun taken from one of the racks in the store. Entry was gained by throwing a tackle box through the front window. In affirming the conviction, this Court stated that in light of the decision in Easton, supra, 'we must look to the evidence other than that concerning the breaking and entering alone to determine if there was sufficient evidence to show an intent to commit a felony'.

In examining such evidence in the instant case, we find that the following facts are sufficient to sustain the jury's finding that the Appellant entered with intent to commit a felony; that he entered the Reynolds' home without their consent; that he was seen 'going through something'; and that a 'clinking' sound was heard in the hallway where coins were later found. Further, Mr. Reynolds' wallet was taken from his trousers that evening and later found and returned to him. The evidence also reveals that upon being discovered, the Appellant jumped through the kitchen window and in so doing suffered several lacerations.

An old case involving a strikingly similar situation found that evidence such as outlined above was sufficient to sustain a conviction requiring an attempt to steal. In that case, Burrows v. State (1882) 84 Ind. 529, a man was awakened by a noise made by the defendant, who was in his bedroom, and upon being discovered, the defendant escaped through an open window. It was discovered that the victim's trousers, containing nothing, had been taken during this period and were later found and returned to him. This Court said at page 533 of 84 Ind.:

'We are of the opinion * * * that the facts and circumstances were abundantly sufficient, * * * to authorize the jury to find that the appellant then and there attempted to commit (la...

To continue reading

Request your trial
24 cases
  • Windle v. State
    • United States
    • Indiana Appellate Court
    • August 29, 1974
    ...Burglary. See, Farno v. State (1974), Ind.App., 308 N.E.2d 724; Robinson v. State (1971), 257 Ind. 38, 271 N.E.2d 727; Davis v. State (1968), 251 Ind. 133, 239 N.E.2d 601; Walker v. State (1968), 250 Ind. 649, 238 N.E.2d 466; Tait v. State (1963), 244 Ind. 35, 188 N.E.2d 537; McAfee v. Stat......
  • Farno v. State
    • United States
    • Indiana Appellate Court
    • March 28, 1974
    ...surrounding circumstances to reasonably infer its existence. Robinson v. State, (1971), 257 Ind. 38, 271 N.E.2d 727; Davis v. State, (1968) 251 Ind. 133, 239 N.E.2d 601; Walker v. State, (1968) 250 Ind. 649, 238 N.E.2d 466; Tait v. State, (1963) 244 Ind. 35, 188 N.E.2d 537; Luther v. State,......
  • Wright v. State
    • United States
    • Indiana Appellate Court
    • August 29, 1974
    ...was found in his house and the remainder in a field through which he was seen running. As the court said in Davis v. State (1968), 251 Ind. 133, 138, 239 N.E.2d 601, 604: 'The jury can make a finding of intent based on the surrounding circumstances of the case, especially where, as in the c......
  • Purcell v. State
    • United States
    • Indiana Appellate Court
    • July 16, 1980
    ...here is whether the trial court's error was harmless. Faced with a similar issue, our Supreme Court stated in Davis v. State (1968), 251 Ind. 133, 139-40, 239 N.E.2d 601, 605: "We believe that the question of whether or not reversible error results because of the admission of incompetent ev......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT