Lamb v. State

• Decision Date: 12 November 1974
• Docket Number: No. 2--674A136,2--674A136
• Citation: 162 Ind.App. 181,318 N.E.2d 587
• Parties: George H. LAMB, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 587

318 N.E.2d 587

162 Ind.App. 181

George H. LAMB, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2--674A136.

Court of Appeals of Indiana, First District.

Nov. 12, 1974.

Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

Defendant-appellant, George H. Lamb, was charged with the offense of second degree burglary. Trial was had to the court without the intervention of a jury and the appellant was found guilty of the lesser included offense of entering to commit a felony. The court sentenced him for a term of one to five years and ordered him disfranchised for a period of three years.

Appellant timely filed his motion to correct errors. It is from the overruling of that motion that this appeal is taken.

The sole issue which appellant asserts on appeal is whether or not his conviction was sustained by sufficient evidence. The applicable rule for cases appealed on the ground of insufficiency of the evidence was well stated in the case of Napier v. State (1973), Ind., 298 N.E.2d 427, as follows:

'. . . When the sufficiency of evidence is raised on appeal, this Court will neither weigh the evidence nor resolve questions concerning the credibility of witnesses. Only that evidence most favorable to the state will be considered together with all reasonable inferences to be drawn therefrom, and if, from that viewpoint, there is substantial evidence of probative value to establish every material element of the crime beyond a reasonable doubt, the verdict will not be disturbed. . . .' 298 N.E.2d 427, 428.

See also, Williams v. State (1973), Ind., 297 N.E.2d 805.

The facts of this case are that the B & K Drive In Restaurant (B&K) was located at 1030 South Sherman Drive, Indianapolis, Indiana, and Sherrie Craig (Craig) was employed at the B&K on December 12, 1973, and had been so employed since June, 1973. On December 12, 1973, Craig worked until 11:00 P.M. and upon closing the restaurant removed the money from the cash register and without counting it, placed it in the safe. Craig closed the door of the safe but did not lock it, after which she and Pat Bitz, a fellow employee, then locked the door of the restaurant and left the premises.

Appellant Lamb had been waiting outside in the parking lot to take Craig home and while so doing was informed by Craig that she had left the safe unlocked. These two had been dating since June, 1973, and had, about a week earlier, discussed the idea of leaving the safe unlocked.

While en route to Craig's residence they talked to one Mike Wouster at his home. Lamb testified that he discussed with Wouster Craig's leaving the safe open at the B&K Drive In Restaurant. Lamb took Craig home and did not see her for about an hour, at which time he again picked her up and he further testified he did not see Wouster again that night after the discussion of the unlocked safe. He further testified that during the time he was gone that he had not gone to the B&K and taken the money.

Craig and Lamb, while riding around, stopped at a market where Lamb purchased a pair of gloves, after which they returned to the B&K and parked outside the parking lot fence. Lamb put on the gloves and left the car, while Craig ducked down in the seat. Lamb went across a parking lot to the B&K and returned in one or two minutes without the gloves. At that time he told Craig he could not go through with the burglary and they drove to the home of Lamb's sister.

Craig testified she did not know how much money Lamb had when he picked her up that night, but he had $74.00 in one dollar bills in his possession while at his sister's home. Lamb testified he had only $25.00 at the time and he had earned that at his place of employment. Lamb gave Craig $6.00 that he owed to her.

Craig testified that the money placed in the unlocked safe by her included currency of the denominations of $20.00, $10.00, $5.00 and $1.00.

The owner of the B&K Restaurant testified he discovered the restaurant had been burglarized the next morning at 7:20 A.M. There was evidence that a side window had been forced open in the B&K building and the safe had been opened without force. The offense of entering to commit felony of which appellant was convicted is defined in IC 1971, 35--13--4--5, Ind.Ann.Stat. § 10--704 (Burns 1956):

'Entering to commit a felony--Penalty.--Whoever enters any dwelling-house, or other place of human habitation, business-house, outhouse, shop, office, storehouse, warehouse, mill, distillery, pottery, factory, barn, stable, schoolhouse, church, meeting-house, or any building used for religious worship, booth, tent, inclosed ginseng garden, boat, wharf-boat, or other water-craft, car, factory, freight house, station house, depot, railroad-car, interurban or streetcar, or any other erection or inclosure, with the intent to commit a felony therein, shall, on conviction, be imprisoned for not less than one (1) year nor more than ten (10) years, and be disfranchised and rendered incapable for holding any office of trust or profit for any determinate period.'

The elements of the offense which must be proved to sustain a conviction are: (1) entry, and (2) an intent at the time of entry to commit a felony therein.

It is well established that a conviction for burglary, and...