Gibson v. State, No. 370S54

Docket NºNo. 370S54
Citation271 N.E.2d 706, 257 Ind. 23
Case DateAugust 04, 1971
CourtSupreme Court of Indiana

Page 706

271 N.E.2d 706
257 Ind. 23
Bobby Kermit GIBSON, Harold Donnie Gibson, Appellants,
v.
STATE of Indiana, Appellee.
No. 370S54.
Supreme Court of Indiana.
Aug. 4, 1971.

[257 Ind. 24] Robert E. Moore, New Whiteland, Michael T. Dugan, II, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., for appellee.

PRENTICE, Judge.

Defendants (Appellants) were convicted of Second Degree Burglary under Burns' Ind.Stat. 1956 Repl. § 10--701(b) (Acts 1951, ch. 148, § 4, IC 1971, 35--13--4--4(b)). Their appeal presents three questions: (1) Sufficiency of the evidence, (2) Adequacy of Miranda warning and waiver and (3) Validity of verdict returned after a jury had separated without leave of court.

The evidence most favorable to the State discloses that the defendants were arrested at the scene of the crime within a few minutes after the arresting officers arrived in response to a signal from a burglar alarm. The furniture store premises which had been burglarized had two entrances at

Page 707

the back. The inside of the store was visible from the front through show windows. Upon arrival, one of the officers viewed the defendants through the showroom window, walking in a bent over position as if carrying something. One of the back doors had been forced open. A hi-fi set inside the store was found in a position other than that in which it had been at the time the store was closed for the night several hours earlier. A screw driver, which might have been used to effect the entry, and which had been seen in the hand of one of the defendants at the time he was first viewed [257 Ind. 25] in the premises, was found on a chair beside him when he was arrested. A tire tool was found three or four feet from the point where the other defendant was standing at the time he was arrested inside the store.

The essential elements of the crime of Second Degree Burglary is a breaking and entering with the intent to commit a felony therein. The evidence, as stated, was sufficient to establish these elements. At the trial, defendants testified that they had entered the premises in search of water for their overheated vehicle. The jury was not bound to accept this explanation for their unauthorized presence. Possession of stolen goods is not a requisite of the crime, and from all the circumstances stated, the jury could reasonably infer that appellants broke and entered the premises with the intent to commit a felony. When the sufficiency of the evidence is raised as an issue on appeal, this Court will consider only that evidence most favorable to the State together with all logical and reasonable inferences which may be drawn therefrom. Lambert v. State (1969), Ind., 249 N.E.2d 502; McGill v. State (1969), Ind., 247 N.E.2d 514; Croney v. State (1969), Ind., 247 N.E.2d 501.

The conviction will be affirmed if, from that viewpoint, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Taylor v. State (1971), Ind., 267 N.E.2d 383; Boss v. State (1970), Ind., 263 N.E.2d 546; Brown v. State (1970), Ind., 263 N.E.2d 534.

Following the arrest, the defendants made confessing statements to police officers while in custody at the police station. The court overruled the defendants' motion to suppress these confessions predicated upon the claim that they were made only because leniency was promised as a reward and that they had not been properly warned of their constitutional right to remain silent, to have counsel or of the effects of [257 Ind. 26] any statements which they might make. The following facts were developed at the hearing on defendants' motion to suppress conducted during the trial on the merits.

After the defendants were arrested inside the store, the police read the Miranda warning to each defendant. Each was advised that he had the right to remain silent; that anything he said could and would be used against him in court; that he had the right to talk to an attorney and have him present during questioning; and that if he could not afford to have an attorney, one would be...

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40 practice notes
  • Com. v. Antobenedetto
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 25 Julio 1974
    ...if aware of such rights, in the absence of counsel. See People v. Baker, 9 Ill.App.3d 654, 659, 292 N.E.2d 760 (1973); Gibson v. State, 257 Ind. 23, 28, 271 N.E.2d 706 In these respects, however, consider the trend in the opposite direction possibly evolving from more recent decisions of th......
  • Pinkerton v. State, No. 770S142
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Junio 1972
    ...and reasonable inferences which may be drawn therefrom. Fuller v. State (1971), Ind., 271 N.E.2d 720; Gibson v. State (1971), Ind., 271 N.E.2d 706; Lambert v. State (1969), 252 Ind. 441, 249 N.E.2d The conviction will be affirmed if, from that viewpoint, there is substantial evidence of pro......
  • Shutt v. State, No. 1076S358
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Octubre 1977
    ...800; Brown v. State (1974), 261 Ind. 619, 308 N.E.2d 699; Turner v. State (1972), 259 Ind. 344, 287 N.E.2d 339; Gibson v. State (1971), 257 Ind. 23, 271 N.E.2d 706; Fuller v. State (1971), 256 Ind. 681, 271 N.E.2d 720." Rosell v. State (1976), Ind., 352 N.E.2d 750, [267 Ind. 114] Secon......
  • Berry v. State, No. 372A141
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 Octubre 1972
    ...that the defendant was guilty beyond a reasonable doubt. Coleman v. State (1971), Ind., 275 N.E.2d 786; Gibson v. State (1971), Ind., 271 N.E.2d 706; Taylor v. State (1971), Ind., 267 N.E.2d In the instant case, the evidence most favorable to the State reveals the following: On the evening ......
  • Request a trial to view additional results
40 cases
  • Com. v. Antobenedetto
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 25 Julio 1974
    ...if aware of such rights, in the absence of counsel. See People v. Baker, 9 Ill.App.3d 654, 659, 292 N.E.2d 760 (1973); Gibson v. State, 257 Ind. 23, 28, 271 N.E.2d 706 In these respects, however, consider the trend in the opposite direction possibly evolving from more recent decisions of th......
  • Pinkerton v. State, No. 770S142
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Junio 1972
    ...and reasonable inferences which may be drawn therefrom. Fuller v. State (1971), Ind., 271 N.E.2d 720; Gibson v. State (1971), Ind., 271 N.E.2d 706; Lambert v. State (1969), 252 Ind. 441, 249 N.E.2d The conviction will be affirmed if, from that viewpoint, there is substantial evidence of pro......
  • Shutt v. State, No. 1076S358
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Octubre 1977
    ...800; Brown v. State (1974), 261 Ind. 619, 308 N.E.2d 699; Turner v. State (1972), 259 Ind. 344, 287 N.E.2d 339; Gibson v. State (1971), 257 Ind. 23, 271 N.E.2d 706; Fuller v. State (1971), 256 Ind. 681, 271 N.E.2d 720." Rosell v. State (1976), Ind., 352 N.E.2d 750, [267 Ind. 114] Secondly, ......
  • Berry v. State, No. 372A141
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 Octubre 1972
    ...that the defendant was guilty beyond a reasonable doubt. Coleman v. State (1971), Ind., 275 N.E.2d 786; Gibson v. State (1971), Ind., 271 N.E.2d 706; Taylor v. State (1971), Ind., 267 N.E.2d In the instant case, the evidence most favorable to the State reveals the following: On the evening ......
  • Request a trial to view additional results

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