Hobbs v. State

Decision Date25 November 1969
Docket NumberNo. 268,268
Citation252 N.E.2d 498,19 Ind.Dec. 363,253 Ind. 195
PartiesCecil HOBBS, Appellant, v. STATE of Indiana, Appellee. S 31.
CourtIndiana Supreme Court

Frank E. Spencer, Indianapolis, for appellant.

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

GIVAN, Judge.

The appellant was charged in the lower court with the offense of second degree burglary. Trial by the court without a jury resulted in a finding of guilty of the lesser included offense of entering to commit a felony as defined in Burns' Indiana Statutes Annotated § 10--704. The evidence most favorable to the state discloses the following:

About 3:35 P.M. on September 4, the same being Labor Day, 1967, one Daniel Crosby, a security guard for the Eli Lilly Company, Indianapolis, entered the canteen area on the second floor of the company's building located on McCarty Street. At that particular time the building was under construction; the first three floors having been completed were occupied by the Lilly Company. The remaining nine floors of the building were still under construction. Both the Lilly Company and the construction company had discontinued work for the holiday.

At the time the guard entered the canteen area, he discovered appellant crouched between two vending machines which were about three feet apart. The appellant had a crowbar in his hand at that time. Upon being discovered by the guard, appellant backed away and did not answer the guard when asked what he was doing in the area. Another security guard arrived to render aid, and in searching the appellant found a wood chisel in appellant's pocket. Both the crowbar and the chisel were admitted into evidence in this case. One of the vending machines near which the appellant was crouched at the time of his discovery had large chip marks and indentations in the metal around its lock. This machine was a new machine, having been installed one month prior to the date in question. The evidence showed that this new machine bore no such marks and indentations at the time of its installation nor at any subsequent time immediately prior to the discovery of appellant as above described.

Appellant contends there is insufficient evidence to establish that he entered the premises with intent to commit a felony. The above evidence was sufficient upon which the trial court could logically base the inference that when the appellant entered the premises he had the intent to commit the felony of theft by breaking open and removing the contents of the vending machine. Stanley v. State (1969), Ind., 245 N.E.2d 149; Ruggirello v. State (1969), Ind., 246 N.E.2d 481.

The appellant next raises the question that his conviction on the so-called lesser included offense of entering to commit a felony is a violation of Article 1, Section 16, of the Constitution of Indiana, which section reads as follows:

'Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.'

In support of this contention appellant points out that the statutory penalty for second degree burglary, which was the charge under which appellant was tried, is two to five years, whereas the penalty for entering to commit a felony is one to ten years.

The law is well established in Indiana that an indeterminate sentence is for the maximum time prescribed by the statute. Terry v. Byers (1903), 161 Ind. 360, 68 N.E. 596.

This question raised by the appellant is extremely important and requires this Court to make a very close examination and reevaluation of some of its most recent cases. In the case of Freeman v. State, decided by this Court in 1967, Ind., 231 N.E.2d 246, this Court specifically stated that entering to commit a felony is a lesser included offense of second degree burglary; however, in so holding the only authority cited by this Court is Watford v. State (1957), 237 Ind. 10, 143 N.E.2d 405. The Watford case is a first degree burglary case. There can be no question that entering to commit a felony is in all ways a proper included offense for first degree burglary inasmuch as the maximum time invoked for such crime is twenty years. However, a serious question arises when second degree burglary is considered in view of the fact that it carries a maximum time of five years. We, therefore, feel compelled to make the following clarifications:

First: We reaffirm the test for included offenses which is set out in the Watford case, supra, at page 15, 143 N.E.2d at page 407, as follows:

"* * * to be necessarily included in the greater offense, the lesser offense must be such that it is impossible to commit the greater without first having committed the lesser. This being true, the court is compelled to hold that, if a party is charged with a given crime, he can not be convicted of another crime of lesser magnitude under the provisions of section 2148, supra, (§ 9--1817, Burns' 1956 Replacement), unless a conviction of the crime charged necessitates proof of all the essential elements of the lesser offense, together with the added element which makes the difference in the two offenses.'

'It is clear from an examination of the two statutes that it is impossible to commit the crime of 'breaking and entering into any dwelling house or other place of human habitation with the intent to commit any felony therein' (burglary in the first degree, § 10--701(a), supra) without having 'entered a dwelling house or other place of human habitation, with the intent to commit a felony therein."

Second: We hold that the language from the Watford case above set out is equally applicable to the offense of second degree burglary for the proof of second degree burglary of necessity establishes the entering to commit a felony with the additional element of a break-in. Absent the breaking, the evidence clearly establishes an entering to commit a felony.

Third: This Court in the recent case of Dembowski v. State (1968), Ind., 240 N.E.2d 815, had before it the question as to whether it was lawful to sentence a defendant charged with armed robbery carrying a maximum time of twenty years to the lesser included offense of robbery carrying a maximum time of twenty-five years. In coming to the conclusion that such a sentence was improper the Court followed Weems v. United States (1910), 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793. In that case the Supreme Court of the United States held that to sentence the defendant to a lesser included offense carrying a maximum time which was five years greater than the greater offense was a violation of the Eighth Amendment to the Constitution. This Court using the same reasoning held the situation in Dembowski to be in violation of the last sentence of Article 1, Section 16 of the Indiana Constitution.

The opinion in Dembows...

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    ...the penalty assessed was cruel and unusual in the constitutional sense. This approach was recently re-affirmed by us in Hobbs v. State (1969), Ind., 252 N.E.2d 498, quoting from Dembowski v. State, "There can be no question that a sentence may be excessive, even though within the maximum of......
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