Gaines v. State

• Decision Date: 27 October 1921
• Docket Number: No. 23908.,23908.
• Citation: 132 N.E. 580,191 Ind. 262
• Parties: GAINES v. STATE.
• Court: Indiana Supreme Court

191 Ind. 262

132 N.E. 580

GAINES

v.STATE.

No. 23908.

Supreme Court of Indiana.

Oct. 27, 1921.

Appeal from Circuit Court, Clark County; James W. Fortune, Judge.

David Gaines was convicted of burglary, and appeals. Reversed, with instructions to sustain motion for new trial.

L. A. Douglass and George C. Kopp, both of Jeffersonville, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. E. F. White, Deputy Atty. Gen., for the State.

WILLOUGHBY, J.

The appellant was convicted of burglary in the first degree. The trial was by jury, upon an affidavit in two counts. The first count charged burglary in the first degree, and the second count charged larceny. The jury found the appellant guilty on the first count. There was no finding on the second count. Judgment was rendered on the verdict that the appellant be imprisoned in the state prison not less than 10 nor more than 20 years and disfranchised for 10 years. From such judgment appellant appeals.

No motion was made attacking the sufficiency of the affidavit. The questions presented by this appeal arise upon the action of the court in overruling appellant's motion for a new trial.

In the motion for new trial it is contended by appellant that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. The verdict is upon the first count of the affidavit and finds “the defendant guilty of burglary in the first degree as charged in the first count of the affidavit.”

[1] Appellant insists that the first count of the affidavit does not state a public offense because burglary in the first degree can only be committed by breaking and entering a place of human habitation; that the affidavit contains no statement that the dwelling charged to have been entered was a place of human habitation; that for these reasons a verdict finding defendant guilty on the first count of the affidavit would be contrary to law.

The first count of the affidavit, omitting the formal parts, is as follows:

“Ellsworth Summers, being duly sworn, upon his oath says that at the county of Clark and state of Indiana, on or about the 10th day of September, 1920, David Gaines, did then and there unlawfully, feloniously and burglariously in the nighttime, break and enter into the dwelling house of Andrew Heilman, situated in Jeffersonville township, Clark county, Ind., with intent then and there, feloniously and burglariously to take, steal and carry away the goods, chattels and personal property of the said Andrew Heilman, then and there being, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.”

This count describes the offense defined in the first section of the Act of March 10, 1915 (Acts 1915, p. 619). The word “dwelling” imports a human habitation.

In the case of Bell v. State, 20 Wis. 601, which was a prosecution for burglary and larceny, it is said:

“The words ‘the dwelling house of Oscar C. Ferris' mean that the building broken and entered was his place of residence, and that he occupied it as such at the time of the breaking and entry. An averment in this form is good in the common–law indictment for burglary and larceny.”

Section 2264, Burns' R. S., defined the crime of burglary. The act of March 10, 1915, divided the offense of burglary into two degrees. The breaking and entering into any dwelling or other place of human habitation with intention to commit a felony was made by this statute burglary in the first degree. Breaking into any of the other houses or buildings enumerated in section 2264, Burns, 1914, was defined as burglary in the second degree.

The first count of the affidavit in this case alleges every fact necessary to show a violation of the first section of chapter 165 of the Acts of 1915, which defines burglary in the first degree. See Acts 1915, p. 619. Edwards v. State, 62 Ind. 34;Sims v. State, 136 Ind. 358, 36 N. E. 278;Choen v. State, 85 Ind. 209;Hunter v. State, 29 Ind. 80;Barnhardt v. State, 154 Ind. 177, 56 N. E. 212;Ewing v. State, 131 N. E. 43.

This count was a sufficient charge of burglary in the first degree, and the jury were warranted in finding “the defendant guilty of burglary in the first degree, as charged in the first count of the affidavit,” if the evidence supports the finding.

The appellant urges that the verdict of the jury is not sustained by sufficient evidence. The state relies for conviction upon what it terms an oral confession of appellant. The witnesses by which the state sought to prove the alleged confession were Andrew Heilman, the owner of the house alleged to have been burglarized, Mary Heilman, his wife, and certain police officers of the city of Jeffersonville, Ind.

On the subject of the alleged confession, Andrew Heilman testified:

“When the police had Gaines locked up in the city jail, I went down and saw him there. They brought him out into the room, and I asked him if he took the money. He denied taking it. My wife was with me, and she talked with him too. He still denied taking the money. Capt. Summers was there, and he told Gaines if he got the money to say so. Gaines said he didn't take it. He told where he was rooming and said he had not been in the house. My wife talked to him, and he finally said he got the money. He said he opened the door with a key and got the key to the dresser drawer and got the money out. Gaines had been arrested and was in jail. No affidavit had been filed against him. Capt. Summers told him if he would tell how he got the money they wouldn't prosecute him so hard and make it light for him.”

Mary Heilman testified:

“I am the wife of Andrew Heilman. I was present at the police station with my husband at the time he was sent for to come down and see David Gaines. I went down with my husband, and they told me to tell Dave if he would say he took the money they wouldn't prosecute him so hard. He said that he didn't take it. I went back to the police station that day. Capt. Summers told me to tell Gaines if he would say that he took the money they wouldn't prosecute him. I told Gaines what he told me to tell him. The old man cursed Dave and called him names. Dave then said to me, ‘I will say that I took the money, but I am as innocent as a new–born baby.’ I told him what they had promised they would do. He said, ‘I'll tell them I took it, but I didn't do it.’ Then he told them, ‘I'll say that I took the money, but I didn't do it.”’

Ellsworth Summers testified:

“I am the chief of police of Jeffersonville, Ind. The defendant was arrested on Tuesday morning and put in jail at the police station. I questioned him about the money; no one was there at that time. I asked him if he had been out there. I made no threats but talked to him as I would to any other person. On Wednesday morning between 7 and 8 o'clock I talked to him again about it. I sent for Mr. Heilman. In the afternoon of the same day, he and Mrs. Heilman came down to the jail. Mr. Heilman talked to him and told him if he got the money to say so. In my conversation with him there I said, ‘If you went out there and did that job why don't you tell it?’ He finally said he did it. Mrs. Heilman said, ‘If you didn't get it, I don't want it.’ He broke down and cried and said, ‘Ma, I've taken your money between $62 and $72 of it.’ I did not promise him that if he would say he took the money I would not prosecute him. He said the key to the dresser drawer was hanging up and he got the key and opened the drawer and then hung it back up. At the time Gaines made these statements he was under arrest and in the city jail. It was Wednesday night when he was arrested and put in jail. The prosecutor talked with Gaines the first time and he denied to him of taking the money. When Mr. and Mrs. Heilman came down and talked to Gaines, they, myself, and Gaines were the only ones there. I did not threaten him, and neither did Mr. Heilman. Gaines and Mr. Heilman got to talking rather loud. Heilman did curse him and started to strike him with his fist. I stopped it. We found a pocketbook on him, showed it to Mrs. Heilman, and she said it was not theirs.”

Dennis Donovan testified:

“I am sergeant of police of Jeffersonville, Ind. Have been on the police force for eleven years. Saw Gaines at the police station and talked to him about the money. He denied taking it. Afterwards he confessed and told us about it. I did not threaten him, but...