Kondrup v. State, 31026

• Citation: 235 N.E.2d 703,250 Ind. 320
• Decision Date: 22 April 1968
• Docket Number: No. 31026,31026
• Parties: John Thomas KONDRUP, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 703

235 N.E.2d 703

250 Ind. 320

John Thomas KONDRUP, Appellant, v. STATE of Indiana, Appellee.

No. 31026.

Supreme Court of Indiana.

April 22, 1968.

Richard M. Salb, Indianapolis, for appellant. John J. Dillon, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.

LEWIS, Chief Justice.

This is an appeal from a conviction of the appellant, by jury, for the crime of Second-Degree Burglary. The appellant was charged by affidavit which reads, omitting the formal parts thereof, as follows:

'BE IT REMEMBERED, That, on this day before me, NOBLE R. PEARCY, Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came HARRY W. WOIRHAYE who, being duly sworn, upon his oath says that JOHN THOMAS KONDRUP on or about the 2nd day of June, A.D. 1965, 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 CHESTER W. RUSSELL AND JOHN R. GIRVIN, d/b/a RUSSELL'S BAIT AND TACKLE, then and there situate at 1450 OLIVER AVENUE, City of Indianapolis, 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 CHESTER W. RUSSELL AND JOHN R. GIRVIN, d/b/a RUSSELL'S BAIT AND TACKLE, and to deprive said CHESTER W. RUSSELL AND JOHN R. GIRVIN, d/b/a RUSSELL'S BAIT AND TACKLE 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.'

The evidence elicited at trial provides us with the following facts. On the night of June 1, 1965, the appellant (after closing hours and without the owners' permission) broke into a bait shop on the West Side of Indianapolis. Entry was gained by throwing a fishing tackle box through the front-door glass. The business was equipped with a signal alarm system, and the windows were bordered with metallic tape which, when broken, would energize the alarm. When a building is so forcibly entered, an alarm sounds in a central office, but it emits no audible sounds on the premises entered. When the central office receives the alarm, they notify the local police and the owners of the business. It is entirely possible for these parties to converge on the scene of the illegal entry before the felon has left or even become aware of their presence.

Due to this alarm system, on the night in question, the owners of the business, an ADT officer, and city police all arrived at the scene before the appellant had vacated the store. The appellant was observed inside the shop holding one of the guns belonging to the owners and loading it with their shells. There were several guns out of their racks, laying about him, and the floor was strewn with shells. The owners testified that the guns and shells were put away in their respective cabinets and racks when they closed that evening. The police entered the store and arrested the appellant on a charge of Pre-Burglary.

A business establishment across the street from the bait shop was also burglarized the same evening. The front glass in it had been broken out and the fishing tackle box which was used to break into the bait shop was identified as being stolen from the other business establishment. The appellant when apprehended had fresh cuts on his hands.

On appeal, as his only assigned error, appellant assigns that there was insufficient evidence to support his conviction rendering it contrary to law. More specifically, he points to Burns' Indiana Statutes, Anno., (1956 Replacement), § 10--701, which contains the following language:

'(b) Whoever breaks and enters into * * * any building or structure other than a dwelling house * * * with the intent to commit a felony therein, shall be guilty of burglary in the second degree, * * *'

The appellant stresses the language in the statute (supra) which says:

'* * * with intent to commit a felony * * *.'

He maintains that while he did break and enter; he had no intention of committing a felony and that he is, therefore, not guilty of a burglary. He continues by saying there is no evidence to show that he intended to commit a felony since he was not observed carrying anything out of the bait shop.

The law in Indiana is well settled that the State must sustain its burden of proof on each element of the offense charged. Carlin v. State (1933), 204 Ind. 644, 184 N.E. 543. However, some of these elements may be proven by circumstantial evidence. Raymer v. State (1964), 244 Ind. 644, 195 N.E.2d 350.

Appellant relies on the recent case from this Court of Easton v. State (1967), Ind., 228 N.E.2d 6, to support his theory of insufficiency of the evidence. In Easton the appellant was discovered in the prosecuting...