Lambert v. State, No. 668

• Docket Nº: No. 668
• Citation: 249 N.E.2d 502, 252 Ind. 441
• Case Date: July 24, 1969
• Court: Supreme Court of Indiana

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249 N.E.2d 502 252 Ind. 441 Dennis Arthur LAMBERT, Appellant,
v.
STATE of Indiana, Appellee. No. 668 S 86. Supreme Court of Indiana. July 24, 1969.

[252 Ind. 442] William C. Burns, Lafayette, for appellant.

John J. Dillon, Atty. Gen. of Indiana, Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for appellee.

JACKSON, Judge.

Appellant, on July 13, 1967, was charged by affidavit with the crime of second degree burglary, to which he entered a plea of not guilty. Trial by jury began on December

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5, 1967, and the jury found the defendant guilty as charged. On December 6, 1967, appellant was sentenced to the Indiana State Prison for a term of not less than two nor more than five years.

On December 22, 1967, appellant filed a Motion for a New Trial alleging, in essence, that:

a.) The trial court denied appellant a fair trial by setting excessive bail, and by refusing to grant appellant a continuance in order to give him an opportunity to raise the necessary funds for bail;

b.) The verdict of the jury is contrary to law;

c.) The verdict of the jury is not sustained by sufficient evidence;

d.) The trial court erred in refusing to give appellant's tendered instructions numbered 2, 4, 5, 6 and 7.

[252 Ind. 443] Appellant's motion for a new trial was overruled on March 21, 1968. On appeal, appellant's sole assignment of error is that the trial court erred in overruling his motion for a new trial.

From the evidence adduced at trial, it appears that on Sunday, July 2, 1967, at approximately 8:15 p.m., a burglar alarm system in the Lafayette Police Department connected directly with Town & Country Lumber Company sounded indicating a possible disturbance at the Town and Country Lumber Company which is located in Lafayette. Two police cars were immediately dispatched, and they arrived at the scene at approximately 8:20 p.m.

There are two buildings on the lumber yard which are connected by a common roof. A driveway running north and south passes between the buildings and under the roof. A picket fence, preventing access to the lumber yard and buildings, is extended across the driveway whenever the business is closed, as it was on the day in question. To the south of the building, at the back of the lumber yard, is a board fence along which is kept various materials. Immediately beyond the fence is a very steep hill approximately twenty feet in height. At the top of the hill is located a used car lot.

The two police cars arrived at the scene simultaneously. Sgt. Eberle drove up from the north side of the buildings, and advanced as far as the picket fence blocking the drive. Officer Griffen drove his car to the west side of the building.

As Sgt. Eberle emerged from his car he saw two men run out of a door of the building located on the east side of the driveway. One man was dressed in a white short sleeve shirt, and the other wore a dark short sleeve shirt. Both men ran to the south between the two buildings. Sgt. Eberle then shouted to Officer Griffen that the two men were running out the back of the lumber yard.

[252 Ind. 444] Officer Griffen, stationed on the west side of the buildings, climbed to the roof of his car, jumped over the picket fence, and then ran to the south end of the buildings. When he reached the south end of the buildings, he saw a man running south toward the board fence at the south end of the lumber yard. Griffen told the man to halt, and identified himself as a police officer, but the man kept running. Griffen then fired two warning shots. However, the man jumped over the fence and began climbing the hill. When the subject was approximately five feet from the top of the hill, Officer Griffen fired a third shot, which was aimed at the fleeing man. Officer Griffen testified that he knew that the bullet had struck the subject. The man then fell forward over the crest of the hill.

When Officer Griffen reached the top of the hill he saw appellant lying beside a parked car with a wound in his right leg. Appellant, at that time, was wearing a white short sleeve shirt, and dark trousers. He was also wearing a pair of dirty brown gloves.

Investigation of the lumber yard revealed that a door to the office building had been broken open, and that there were marks on

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the door of the vault located at the rear of the office. Approximately twenty to thirty feet south of the door to the building were found a sixteen pound sledge hammer, a crow bar, a nail puller and another pair of gloves.

The first allegation of appellant's motion for a new trial is that the appellant was denied a fair trial because the trial court set excessive bail, and refused to grant him a continuance. However, this issue has been neither briefed nor argued by appellant, and, accordingly, is thereby deemed to have been waived. McGill v. State (1969), Ind., 247 N.E.2d 514; Krivanek v. State (1969), Ind., 247 N.E.2d 505; Dombkowski v. State (1967), Ind., 230 N.E.2d 602. That fact being admitted by appellant in his reply brief.

[252 Ind. 445] Appellant next contends that the evidence was insufficient to sustain the verdict of the jury. In deciding questions of this nature we are limited by the long standing rule that this Court, on an appeal will not weigh the evidence or determine the credibility of the witnesses. McGill v. State, supra; Davis v. State (1968) Ind., 232 N.E.2d 867; Stock v. State (1966), 247 Ind. 532, 219 N.Ed.2d 809; Barnes v. State (1965), 246 Ind. 485, 205 N.E.2d 539. Moreover, we are bound to consider only that evidence most favorable to the State, together with all reasonable and logical inferences which may be legally drawn therefrom. McGill v. State, supra; Langley v. State (1968) Ind., 232 N.E.2d 611; Reid v. State (1967) Ind., 231 N.E.2d 808; Fisher v. State (1966), 247 Ind. 529, 219 N.E.2d 818.

In reviewing the evidence in accordance with the above standards, we cannot say, as a matter of law, that the evidence presented by the State was insufficient to sustain a verdict of guilty of the crime of second degree burglary. The statute under which appellant is charged is Acts 1941, ch. 148, § 4, p. 447, being Indiana Ann.Stat. § 10--701(b) (1956), which reads in pertinent part as follows:

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

The affidavit charging appellant with the crime reads in pertinent part as follows:

'The undersigned affiant, being first duly sworn on oath, says that on the 2nd day of July, 1967, at the County of Tippecanoe in the State of Indiana, one DENNIS ARTHUR LAMBERT did then and there unlawfully, feloniously and burglariously break and enter into the building of Town and Country Lumber Company, Inc., an Indiana Corporation located at 1307 Ferry Street in the City of [252 Ind. 446] Lafayette in said County and State with the intent to commit a felony, to-wit: knowingly, unlawfully and feloniously obtain and exert unauthorized control over the property of the said Town and Country Lumber Company, Inc., an Indiana Corporation, intending to deprive Town and Country Lumber Company, Inc., an Indiana Corporation, permanently of the use and benefit of said property contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana.'

The material elements of second degree burglary are:

1. breaking and entry;

2. of a building or a structure other than a dwelling house or place of human habitation;

3. with the intent to commit a felony therein.

Appellant admits, at pages ninety-three and ninety-four of his brief, that the State presented sufficient evidence to establish the first two elements referred to above. Appellant, however, contends that the State failed to establish that the breaking and entering was done with the intent to commit a felony, and that the appellant was the person who...