Glover v. State

• Decision Date: 30 November 1970
• Docket Number: No. 869S178,869S178
• Parties: Joseph D. GLOVER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 723

263 N.E.2d 723

255 Ind. 304

Joseph D. GLOVER, Appellant, v. STATE of Indiana, Appellee.

No. 869S178.

Supreme Court of Indiana.

Nov. 30, 1970.

Don R. Money, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen. of Ind., Kenneth M. McDermott, Deputy Atty. Gen., Indianapolis, for appellee.

JACKSON, Judge.

Appellant was charged by affidavit with the crime of Second Degree Burglary, said affidavit reading in pertinent part as follows:

'(T)hat JOSEPH D. GLOVER, BILLY GENE PHIPPS and ROBERT J. PIERSON on or about the 1st day of FEBRUARY, A.D. 1968, 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 building and structure of PANKE MACHINERY CORPORATION, a corporation, then and there situate at 7255 WEST WASHINGTON STREET, County of Marion, State of Indiana, which said building and structure was not a place of human habitation, with the intent to commit a felony therein, to-wit: to unlawfully and feloniously and knowingly obtain and exert unauthorized control over property of said PANKE MACHINERY CORPORATION, a corporation, permanently of the use and benefit of said property, 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.'

On June 5, 1968, appellant waived arraignment and entered a plea of not guilty to the crime as charged. Appellant filed his written waiver of jury trial on March 10, 1969, and this cause was thereafter tried by the court without the intervention of a jury, said trial commencing on April 17, 1969. On the same date the court found appellant guilty as charged and ordered a Pre-Commitment Investigation Report to be filed. On May 7, 1969, the court sentenced appellant to the Indiana State Reformatory for not less than Two (2) nor more than Five (5) years and disfranchised him for a period of Two (2) years.

Appellant filed his motion for new trial on May 22, 1969, said motion attacking the finding of the court as not sustained by sufficient evidence and contrary to law. The court overruled appellant's motion the same day. Appellant's sole Assignment of Error on appeal is that the trial court erred in overruling his motion for new trial.

Appellant contends that the evidence presented to the trial court was wholly insufficient to sustain his conviction on each of the essential elements of the crime as charged. This Court has previously stated that, when the question of the sufficiency of the evidence is raised as an issue on appeal, it will consider only that evidence most favorable to the State, together with all reasonable and logical inferences which may be drawn therefrom, Liston v. State (1969), Ind., 250 N.E.2d 739; McGill v. State (1969), Ind., 247 N.E.2d 514, and that a conviction will be affirmed if, from that viewpoint, there is evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Smith v. State (1970), Ind., 260 N.E.2d 558.

The facts which tend to support the finding of the trial court in the case at bar are as follows: On February 1, 1968, appellant, Bobby Pierson, and Billy Phipps drove to the Panke Machinery Corporation, located at 7255 West Washington Street in the City of Indianapolis. They parked appellant's car in a service station just west of the building which houses Panke Machinery Corporation. Appellant and Pierson announced that they were going to break into the building while Phipps remained in the car. Appellant took a screwdriver with him. He and Pierson were gone for a period of two to three hours. Upon their return to the car, appellant drove it over to the rear of the building, opened a rear door to the building, and began loading merchandise from the building into the automobile.

Charles Banford, an employee of Panke Machinery Corporation, stated that, when he arrived at work, he observed that a forced entry through a door in the rear of the building had been made. He further stated that he had conducted an inventory, and that the following items were missing: 1 Bell and Howell projector, 2 Victor adding machines, 5 I.B.M. electric typewriters, 1 Add-O-X adder, 6 Remington adders, 1 Polaroid camera, 1 Philco portable television, and a Frieden calculator, serial number 901580.

Later that same day, Robert Gray purchased the Frieden calculator aforementioned from appellant, Pierson and Phipps. Gray later resold the calculator, and it was subsequently recovered by deputies of the Marion County Sheriff's Department. Appellant and Phipps kept the proceeds of the sale of the calculator and went to Evansville.

The statute under which the appellant was charged and convicted is Burns' Ann.Stat. § 10--701(b) (1956 Repl.), which reads in pertinent part as follows:

'Whoever breaks and enters into any * * * building or structure other than a dwellinghouse or place of human habitation, with the intent to commit a felony therein, shall be...