Keel v. State, No. 3--1273A183

Docket NºNo. 3--1273A183
Citation333 N.E.2d 328, 165 Ind.App. 579
Case DateSeptember 03, 1975
CourtCourt of Appeals of Indiana

Page 328

333 N.E.2d 328
165 Ind.App. 579
John Thomas KEEL, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 3--1273A183.
Court of Appeals of Indiana, Third District.
Sept. 3, 1975.
Rehearing Denied Oct. 24, 1975.

[165 Ind.App. 581]

Page 330

Thomas L. Ryan, Deputy Public Defender, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Henry O. Stitler, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

A jury found John Thomas Keel guilty of first degree burglary, and he was sentenced to the Department of Correction for an indeterminate period of not less than ten nor more than twenty years. 1 His appeal to this Court raises the following issues:

[165 Ind.App. 582] (1) Was there sufficient evidence of a place of human habitation?

(2) Did the trial court err when it refused Keel's tendered Instructions Numbers Three and Four, and gave State's Instructions Numbers Two and Nine?

(3) Did the trial court err by allowing an accomplice to testify who had refused to testify earlier at a conditional examination?

(4) Did the trial court err by refusing to admit information from medical records?

We conclude that no errors were committed, and we affirm.

I.

Place of Habitation

After scanning the obituary notices in the newspaper, Keel and three co-conspirators planned to burglarize the home of Lula Roberson who had died and was to be buried the next day, December 21, 1971. They reasoned that the house would be vacant, and that if they were caught, they could only be charged with second degree burglary. 2 Before Lula Roberson's death, Burl McClain came to live with her, so that she would have his companionship and protection. He remained in the Roberson home for a week after Lula Roberson's death.

Keel contends McClain's presence in the Roberson home after Lula Roberson's death was an unlawful habitation because McClaim's right to habitation of the premises terminated at Lula Roberson's death.

The personal property of Lula Roberson and Burl McClain was taken in the burglary. Burglary is an offense against the possessory interest or possession of the premises. Musick v. State (1972), 258 Ind. 295, 280 N.E.2d 602; Summers v. State (1972), Ind.App., 285 N.E.2d 673; Bradley v. State (1964), 244 Ind. 630, 195 N.E.2d 347. Lula Roberson and Burl McClain planned to be married. The Roberson home was McClain's abode at the time of Lula Roberson's death and for a week thereafter. The evidence[165 Ind.App. 583] clearly establishes that the Roberson home was a place of human habitation at the time of the burglary.

II.

Instructions

Keel contends that the trial court erroneously refused his tendered Instructions Three and Four which read as follows:

Instruction Three:

'The essense (sic) of the crime of burglary is an invasion of another's lawful habitation, occupancy or possession of property.

A person who is permitted to occupy quarters in return for a service to be performed by him has no right of possession.'

Page 331

Instruction Four:

'Death terminates a person's right of occupancy where such occupancy has arisen as a result of an agreement for the right of occupancy in return for services.'

It is not necessary for the State to prove ownership of the burglarized property or the contractual obligations between Lula Roberson and Burl McClain. Instruction Three is a very confusing, fragmented statement of the law which is only partially supported by the evidence. Instruction Four seeks to resolve a right to occupancy issue which is not an element of the crime of burglary.

We conclude that the trial court did not commit reversible error by refusing Keel's Instructions Three and Four.

Keel further contends that the State's Instruction Number Two, which merely restated the first degree burglary statute, was in direct conflict with his Instruction Number Nine which is as follows:

'When a habitation is vacated, even though temporarily, it ceases to be a place where humans make their abode and so becomes a place other than a 'place of human habitation'; therefore, a breaking and entering of such empty habitation becomes second degree burglary.'

State's Instruction Number Two refers to 'dwelling house' and 'place of human habitation' while Keel's Instruction [165 Ind.App. 584] Number Nine and the affidavit refer only to 'a place of human habitation.' Keel contends that the jury could have found the Roberson home not a 'place of human habitation' under the affidavit but could have found the Roberson home a 'dwelling house' under the statute set out in Instruction Two. The common law term 'dwelling house' is a broader term than 'place of human habitation' although the terms are sometimes used interchangeably. 'Dwelling house' at common law included buildings within the curtilage since it applied primarily to rural communities. (See Words and Phrases, 'Dwelling House.') This subtle distinction or shaded meaning of 'dwelling house' was never brought to the jury's attention nor does the evidence suggest its use.

The affidavit mentioned only 'place of human habitation' and did not use the additional term 'dwelling house'. The purpose of the affidavit is to advise Keel of the...

To continue reading

Request your trial
14 practice notes
  • O'Conner v. State, No. 2-378A99
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1978
    ...the trial court has the inherent power to impose sanctions such as a protective order barring testimony. Keel v. State, (1975) Ind.App., 333 N.E.2d 328, 332; See also Chatman v. State, (1975) 263 Ind. 531, 334 N.E.2d 673; Upshaw, supra; State v. Buza, (1975) Ind.App., 324 N.E.2d 824. Furthe......
  • Gubitz v. State, No. 3--375A38
    • United States
    • March 1, 1977
    ...testimony of an accomplice. Wolfe v. State, supra; Newman v. State (1975), Ind., 334 N.E.2d 684; Keel v. State (1975), Ind.App., 333 N.E.2d 328 (transfer denied). Accordingly, Alexander was a competent witness and his testimony was properly received into McCraney asserts that in Shelton v. ......
  • Harrington v. State, No. 2-878A284
    • United States
    • Indiana Court of Appeals of Indiana
    • December 15, 1980
    ...issue and its rejection was not improper. Bryant v. State (1973) 261 Ind. 172, 181, 301 N.E.2d 179, 184; Keel v. State (3d Dist. 1975) 165 Ind.App. 579, 588, 333 N.E.2d 328, The judgment of the trial court is reversed, and this case is remanded for a new trial. SHIELDS, J., concurs. BUCHANA......
  • Mauricio v. State, Nos. 683S203
    • United States
    • Indiana Supreme Court of Indiana
    • April 2, 1985
    ...purpose of an affidavit is to advise the defendant of the particular crime charged so he can prepare a defense. Keel v. State, (1975) 165 Ind.App. 579, 333 N.E.2d 328, reh. denied. A defect in an affidavit is grounds for reversal only where it prejudices the substantial rights of the defend......
  • Request a trial to view additional results
14 cases
  • O'Conner v. State, No. 2-378A99
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1978
    ...the trial court has the inherent power to impose sanctions such as a protective order barring testimony. Keel v. State, (1975) Ind.App., 333 N.E.2d 328, 332; See also Chatman v. State, (1975) 263 Ind. 531, 334 N.E.2d 673; Upshaw, supra; State v. Buza, (1975) Ind.App., 324 N.E.2d 824. Furthe......
  • Gubitz v. State, No. 3--375A38
    • United States
    • March 1, 1977
    ...testimony of an accomplice. Wolfe v. State, supra; Newman v. State (1975), Ind., 334 N.E.2d 684; Keel v. State (1975), Ind.App., 333 N.E.2d 328 (transfer denied). Accordingly, Alexander was a competent witness and his testimony was properly received into McCraney asserts that in Shelton v. ......
  • Harrington v. State, No. 2-878A284
    • United States
    • Indiana Court of Appeals of Indiana
    • December 15, 1980
    ...issue and its rejection was not improper. Bryant v. State (1973) 261 Ind. 172, 181, 301 N.E.2d 179, 184; Keel v. State (3d Dist. 1975) 165 Ind.App. 579, 588, 333 N.E.2d 328, The judgment of the trial court is reversed, and this case is remanded for a new trial. SHIELDS, J., concurs. BUCHANA......
  • Mauricio v. State, Nos. 683S203
    • United States
    • Indiana Supreme Court of Indiana
    • April 2, 1985
    ...purpose of an affidavit is to advise the defendant of the particular crime charged so he can prepare a defense. Keel v. State, (1975) 165 Ind.App. 579, 333 N.E.2d 328, reh. denied. A defect in an affidavit is grounds for reversal only where it prejudices the substantial rights of the defend......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT