Easton v. State, 30782

Citation248 Ind. 338,228 N.E.2d 6
Decision Date20 July 1967
Docket NumberNo. 30782,30782
PartiesHarold E. EASTON, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Charles G. Castor, Indianapolis, for appellant.

John J. Dillon, Atty. Gen. Indiana, Douglas B. McFadden, Deputy Atty. Gen., for appellee.

HUNTER, Chief Justice.

This is an appeal from a conviction of Harold E. Easton of the offense of first degree burglary in Marion Criminal Court Division One. The charge was brought by way of affidavit and the issues were drawn upon the appellant's plea of not guilty to said affidavit which is set forth as follows:

'BE IT REMEMBERED, That, on this day, before me, NOBLE R. PEARCY Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came JOHN ADAMSON who, being duly sworn, says that HAROLD EDGAR EASTON on or about the 24th day of February, A.D. 1964, at and in the County of Marion in the State of Indiana, did then and there unlawfully, feloniously and burglariously break and enter into the apartment and place of human habitation of VICTORIA JONES then and there situate at 514 East 20th Street, Apartment #6, City of Indianapolis, County of Marion, State of Indiana, in which said Apartment the said VICTORIA JONES then lived, with the intent to unlawfully and feloniously take, steal and carry away the goods, chattels and personal property of the said VICTORIA JONES 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 defining said offense and penalty therefor is as follows:

' § 10--701 Burglary--First, second, and third degrees--Penalties.--(a) Whoever breaks and enters 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, shall be guilty of burglary in the first degree, and on conviction thereof shall be imprisoned not less than ten (10) years nor more than twenty (20) years and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.'

The cause was submitted for trial before the Honorable Eugene M. Fife, Jr., Judge, without the intervention of a jury. The briefs are silent and present no question of challenge to waiver of the right to trial by jury. Therefore, we will presume the legal propriety of the defendant's waiver of his constitutional right to a trial by jury. The Court found the defendant guilty as charged and sentenced and committed the appellant to the Indiana State Prison for not less than ten (10) years nor more than twenty (20) years. The defendant appearing pro se filed his motion for new trial which was overruled by the trial court.

Thereafter the appellant filed a motion for appointment of counsel and for a transcript. The Court granted both requests and appointed Lewis Davis as attorney to represent the appellant on appeal who later upon petition was permitted to withdraw as pauper attorney. The Court then appointed Charles Castor as attorney to represent the appellant on this appeal.

The record of the evidence viewed most favorable to the appellee State of Indiana reveals the following:

On February 24, 1964, the day of the alleged crime, Victoria Jean Jones resided at 514 East Twentieth Street, Apartment Six; Victoria and her sixteen (16) year old nephew, James David Smith, were in the apartment just prior to the time of the alleged crime. At approximately 5:00 or 5:30 P.M., Smith left the apartment to go to the store for his aunt. When he returned same fifteen (15) minutes later, his aunt was gone and he discovered the appellant sitting on a couch watching television in the apartment. The lock was broken off the door. The appellant said to James, 'Guess I'd better go * * * tell her not to lock the door no more.' Whereupon he offered to pay for the lock and left showing no haste. The appellant was arrested at the home of a friend approximately two (2) hours later. There had been no attempt to flee or hide. No burglary tools or other evidence were found on his person and he made no statements when apprehended.

Victoria Jones testified that she had left shortly after James Smith; that she had locked the door, and that it was in good repair. Also she stated that nothing had been stolen, and the only noticeable change upon her return was a record player unplugged with the records previously on top of it having been placed on the floor.

Appellant argues that the evidence, circumstantial in nature, is not conclusive enough to prove defendant guilty beyond a reasonable doubt. While he admits convictions for burglary have been obtained on circumstantial evidence, the appellant contends the evidence here is inadequate.

The motion for new trial and assignment of error present only a question of the sufficiency of the evidence.

The appellant contends that the affidavit charging him with the crime of first degree burglary presents certain elements each of which is an issuable fact and the State was required to establish the existence of each of such elements of issuable facts beyond a reasonable doubt. We agree with such contention and the elements are as follows:

(1) that there was a breaking and entering by the appellant;

(2) that the apartment of Victoria Jones was a place of human habitation; and

(3) that the entry by the appellant was with intent to commit a felony.

We hold that the record of the evidence as hereinabove set forth is sufficient to sustain a finding beyond a reasonable doubt of issuable facts of breaking and entering; and that the apartment of Victoria Jones was a place of human habitation; and as the tenant Victoria Jones was in possession and occupancy of the premises.

First degree burglary under the law requires that the breaking and entering be accompanied by proof beyond a reasonable doubt that the breaking and entering upon the premises be accompanied by an intent to commit a felony upon entrance. The appellee, State of Indiana, argues that the appellant's unexplained presence in the apartment with the latch broken and a record player unplugged with the records on the floor creates a reasonable inference of intent to take something of value from the premises. The appellee's assertion verges close to the position that the above set of facts raises a presumption of intent beyond a reasonable doubt.

We know of no such rule of law and upon close examination and analysis we do not believe the authorities cited in support thereof sustain such a rule in burglary cases. Further, we are mindful of the fact that the burden of proof of each element must be borne by the State and each issuable fact must be established by substantial evidence beyond a reasonable doubt.

§ 9--1806 Burns' 1956 Repl. (Acts 1905, ch. 169, § 261) and cases thereunder too numerous to cite provide:

'Reasonable doubt.--A defendant is presumed to be innocent until the contrary is proved. When there is a reasonable doubt whether his guilt is satisfactorily shown, he must be acquitted. * * *'

The scintilla of evidence rule does not obtain in Indiana and it is a well settled rule that material facts in issue be supported by some evidence of probative value and this question is one of law reviewable on appeal. Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641; Nordyke & Mormon Co. v. Whitehead (1914), 183 Ind. 7, 106 N.E. 867. We construe the rule to be the substantial evidence rule and the test of substantial evidence is whether the trier of the facts could reasonably find the issuable fact beyond a reasonable doubt. Todd v. State (1951), 230 Ind. 85, 101 N.E.2d 922. Such rule does not require proof to a demonstrable certainty. However, a material allegation or an issuable fact in a criminal prosecution requires more evidence than proof by a mere preponderance of the evidence.

Where the evidence of an issuable fact is wholly circumstantial in nature the evidence must be so conclusive and compelling in character that it excludes every reasonable hypothesis of the presumption of innocence of the defendant. White v. State (1948), 226 Ind. 309, 79 N.E.2d 771. While the above rule has been held to be for the guidance of the trial court and on appeal it is not the province or right of this Court to weigh the evidence, however, it is the duty of this Court to examine the record of the evidence to determine whether there was sufficient evidence substantial in character to support the court's finding on each of the issuable facts or elements of the crime charged beyond a reasonable doubt. White v. State, supra; Baker v. State, supra.

A careful examination of the cases decided by this Court through the years where convictions have been reversed because they were not sustained by sufficient evidence, indicates that this Court was applying the test of 'the substantial evidence rule' in holding that some material element or issuable fact had not been sufficiently proved and therefore no reasonable man could find the issuable fact had been proved beyond a reasonable doubt. Baker v. State, supra; Sylvester v. State (1933), 205 Ind. 628, 187 N.E. 669.

The rule of law defining proof beyond a reasonable doubt is well settled. It requires the trier of the facts to be so convinced by the evidence that as a prudent man he would feel safe to act upon such conviction in matters of the highest concern and importance to his own nearest, dearest and most important interests in circumstances where there was no compulsion or coercion to act at all. A prudent man is a reasonable man. If different persons might reasonably arrive at different conclusions from that reached by the trier of the facts the finding and judgment of guilt will not be set aside. However, if no reasonable man could be so convinced by the evidence of the guilt of the defendant beyond a reasonable doubt under such rule and test then the finding and judgment of guilt cannot stand and is...

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