Freeman v. State, 30653

Decision Date05 December 1967
Docket NumberNo. 30653,30653
Citation231 N.E.2d 246,249 Ind. 211
PartiesCharles FREEMAN, Appellant, v. The STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Dalmbert & Pushor, Columbus, for appellant.

John J. Dillon, Atty. Gen., of Indiana, Wilma T. Leach, Deputy Atty. Gen., Indianapolis, for appellee.

LEWIS, Judge.

This an appeal from a conviction of the crimes of Second-Degree Burglary, Grand Larceny, and Automobile Banditry. Trial was held before a jury.

The affidavit, omitting the formal parts, reads as follows:

'Alvin L. Wolfe, being duly sworn, upon oath, says that he is informed and believes that on or about the 7th day of October, 1963, at and in the County of Bartholomew and State of Indiana, one Charles Freeman did then and there unlawfully, feloniously and burglariously break and enter into a building, not a dwelling house or place of human habitation, and in which the said Charles Freeman had no right to enter, said building being occupied for business purposes by Lloyd E. Huffer and Rex Deiwert, partners doing business as Huffer-Deiwert T. V., said building being located at 2436 Cottage Avenue, Columbus, Bartholomew County, Indiana, with intent to commit a felony therein, to-wit: to unlawfully and feloniously take, steal and carry away the goods, chattels and personal property of the said Lloyd E. Huffer and Rex Deiwert, then and there being contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State of Indiana.'

COUNT II

'Alvin L. Wolfe, being duly sworn, upon oath, says that he is informed and believes that on or about the 7th day of October, 1963, at and in the County of Bartholomew and State of Indiana, one Charles Freeman did then and there unlawfully and feloniously take, steal and carry away of the personal goods and chattels of Lloyd E. Huffer and Rex Deiwert, partners, doing business as Huffer-Deiwert T.V., one (1) Admiral television set and two (2) radios, then and there of the value of Five Hundred Sixty-Eight Dollars and Ninety Cnets ($568.90), then and there being contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State of Indiana.'

COUNT III

'Alvin L. Wolfe, being duly sworn, upon oath, says that he is informed and believes that on or about the 7th day of October, 1963, at and in the County of Bartholomew and State of Indiana, one Charles Freeman did then and there unlawfully and feloniously take, steal and carry away of the personal goods and chattels of Lloyd E. Huffer and Rex Deiwert T.V., one (1) Admiral television set and two (2) radios, then and there of the value of Five Hundred Sixty-Eight Dollars and Ninety Cents ($568.90), and the said Charles Freeman, at said time and place, had on and near the premises where said act was committed by him a self-moving conveyance, to-wit: a 1955 Chevrolet Panel Truck, by the use of which he escaped and intended and attempted to escape, then and there being contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State of Indiana.'

At approximately 5:30 A.M. one morning, the appellant, who was driving a truck, was stopped by Columbus police. They had discovered that a burglary had been committed in a T.V. store in the area shortly before. Appellant was arrested for not having a driver's license and taken to police headquarters in Columbus. The truck was then searched and some of the items reported missing from the T.V. store were positively identified as those stolen. Also found in the truck were several burglary tools. The T.V. store's door had been pried open. The tools showed use and one had some paint on it that could have matched that on the store, but it was not identified as such.

When apprehended the appellant stated that he was from Indianapolis and was in Columbus to 'try out' the truck with the possibility of buying it in mind. Later he said he had been brought to Columbus by a named party and hired to drive the truck back for $50.00.

On trial the appellant introduced three (3) witnesses who testified, in substance, that he had been hired to drive the truck at 2:30 A.M. of the morning in question by the same-named individual. His sister drove him to Columbus and deposited him at the truck by 3:30 A.M. She did not testify as to the contents of the truck at that time. Due to routine checks by the Columbus police on local businesses, the time of the burglary was fixed as after 4:00 A.M. and before 5:30 A.M. when the appellant was apprehended.

A large five-feet long stereo-T.V. combination, a color T.V. set, two (2) transistor radios, some T.V. repair equipment, and approximately $8.00 was taken. Some of this was not in the truck when impounded by the police and was never found.

The appellant raises, validly, four (4) errors on appeal:

1. That the Trial Court erred in refusing to instruct the jury on the offense of entering to commit a felony contending such offense is included in Second-Degree Burglary as covered by Count I of the affidavit.

2. That there was insufficient evidence to support this conviction rendering it contrary to law.

3. That the Trial Court committed prejudicial error in giving an instruction as to aiders and abettors in a crime, Instruction No. 13.

4. That the Court erred in not giving to the jury tendered Instruction No. 7.

In his first issue raised for this appeal, appellant states that it was reversible error for the Trial Court to refuse to instruct the jury as to the lesser included offense of Entering to Commit a Felony pursuant to Burns' Indiana Statutes, Anno., § 10--704, (1956 Repl.). Appellant argues that entering to commit a felony is a lesser included offense of Second-Degree Burglary as covered by Count I of the affidavit. In pressing his point he relies on Watford v. State of Indiana (1957), 237 Ind. 10, 143 N.E.2d 405. This case is sound authority for the rule that such an error by the Court is, indeed, reversible error. We, therefore, concur with appellant in that the conviction for Second-Degree Burglary should be reversed.

In his second issue, the appellant maintains that there is insufficient evidence to support the convictions. On appeal this Court may not weigh the evidence, but will only look to see if there is substantial evidence of probative value from which the jury would be warranted in returning a verdict of guilty. There must be such evidence to prove every material element of the crime charged. Gilmore v. State (1951), 229 Ind. 359, 98 N.E.2d 677; Flowers v. State (1956), 236 Ind. 151, 139 N.E.2d 185; Carlin v. State (1933), 204 Ind. 644, 184 N.E. 543.

Examining the conviction of Auto Banditry, first we note that the statute sets out the following:

'Automobile banditry--Use of conveyance in escape or attempted escape.--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, airplane, 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, airplane, 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 any determinate period not less than ten (10) years nor more than twenty-five (25) years.' Burns' Indiana Statutes, Anno., § 10--4710, (1956 Repl.).

In Todd v. State (1951), 230 Ind. 85, 101 N.E.2d 922, this Court reversed a conviction of Auto Banditry wherein the State did not prove that the appellant had on or near the premises, an automobile, or similar vehicle, which he intended or did use in an attempt to escape or in which they did escape. The only evidence is that the stolen goods were found in th truck which the appellant was driving. In Todd, the goods--derived as the fruits of a fraudulent check--were found in the car which appellant was apprehended in...

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