Hunter v. State, 30618

• Decision Date: 17 May 1965
• Docket Number: No. 30618,30618
• Parties: Joseph Robert HUNTER, William Arnett Harold, Appellants, v. The STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 207

207 N.E.2d 207

246 Ind. 494

Joseph Robert HUNTER, William Arnett Harold, Appellants, v. The STATE of Indiana, Appellee.

No. 30618

Supreme Court of Indiana.

May 17, 1965.

John G. Bunner, Evansville, for appellants.

John Dillon, Edwin K. Steers, Attys. Gen., Frederick J. Graf, Deputy Atty. Gen., for appellee.

LANDIS, Judge.

This appeal stems from appellants' judgment of conviction for second degree burglary upon an affidavit ¹ charging them with that offense.

Error is assigned upon overruling the motion for new trial.

Appellants argue the court's finding is not sustained by sufficient evidence and is contrary to law in that second degree burglary is a specific intent crime and that the evidence showed both appellants were intoxicated and therefore could not have formed the necessary intent.

The evidence favorable to the State was that an Evansville police detective, Frank Long, testified that about 11:00 p. m. he received a radio dispatch to go to Dr. Adler's office at 714 Second Avenue where someone was attempting to enter the office. When he arrived there with Sgts. Weber and Harper he found a window pane broken at the rear of the building. The policemen gained entrance to the building by forcing a rear door. They noticed blood upon the broken rear window and blood leading from the window into an examining room, through a hallway and into Dr. Adler's office.

Detective Long testified they found both of appellants at a medicine cabinet in Dr. Adler's office and that both men were searching through the medicine cabinet. Appellant Harold turned around and said 'hello, Sgt. Weber,' or 'hello Jack'--it appearing he was acquainted with the police officer. Appellant Harold's right arm was bleeding apparently from injuring himself in gaining admittance through the broken rear window. Appellant Hunter told the policemen his name. The policemen asked appellants what they were doing in Dr. Adler's office. Neither appellant answered, whereupon a search was made of appellants' persons. A large bottle containing about 1,000 sodium secobarbital tablets, a non-narcotic, was found in the right hand pants pocket of appellant Hunter. Dr. Adler who arrived at the office upon a call from the officers testified a bottle of about 1,000 sodium secobarbital tablets, belonging to him, were missing from his office. Dr. Adler further testified the bottle of capsules taken was worth $10.00 and that he last saw the bottle on the shelf with other drugs, and that the bottle was removed sometime prior to the time he was called to his office by the officers.

Detective Long testified on cross-examination that appellants appeared to be very drunk at the time of their apprehension and upon the basis of this evidence appellants contend they were unable to entertain the specific intent charged. The witness was also asked if they were so drunk they were unable to talk, and replied: 'No, they could talk. We, uh, Mr. Hunter told us his name, and Harold didn't say much of anything, I think he was bothered quite a bit with his arm at the time, being cut.'

As we stated in Yarber v. State (1962), 242 Ind. 616, 618, 179 N.E.2d 882, 883:

'While evidence of intoxication is admissible and may be considered in behalf of a person on trial for a crime involving specific intent, it acts as a complete and effective defense only when its degree is such as to render the accused incapable of entertaining the specific intent. Brattain v. State (1945), 223 Ind. 489, 497, 61 N.E.2d 462, 465. * * *'

We do not believe from the foregoing evidence we can say as a matter of law appellants could not have found the specific intent required to commit the crime of burglary. Appellants' state of alertness is indicated somewhat by the evidence that when appellants were accosted by the officers in raiding the medicine cabinet of the premises burglarized, one appellant greeted an officer with the salutation of 'hello, Sgt. Weber' or 'hello Jack,' and the other appellant told the officers his name. The extent of intoxication apparently did not interfere with the ability of appellants to talk or of one of them to be concerned about the cut on his arm caused by the breaking and entering. Appellant Hunter was sufficiently aware of his burglarious actions to be carrying the stolen bottle of 1,000 pills in his right pants pocket.

Under the settled law the specific intent of appellants to commit the crime of burglary charged in the affidavit was an essential element of the offense but the existence or non-existence of such a criminal intent upon such a record with conflicting inferences was a question of fact to be determined by the fact finding court or jury from all the evidence. ...