Leslie v. State, No. 29613

• Docket Nº: No. 29613
• Citation: 158 N.E.2d 654, 239 Ind. 462
• Case Date: May 22, 1959
• Court: Supreme Court of Indiana

Page 654

158 N.E.2d 654 239 Ind. 462 Frederick LESLIE, Appellant,
v.
STATE of Indiana, Appellee. No. 29613. Supreme Court of Indiana. May 22, 1959.

[239 Ind. 463] Ferdinand Samper, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Merl M. Wall, Asst. Atty. Gen., for appellee.

LANDIS, Chief Justice.

Appellant is here on an appeal from his judgment of conviction for second-degree burglary.

Page 655

Appellant here first contends the evidence was insufficient to support the jury's verdict, viz.: that second-degree burglary is a specific intent crime and that because of appellant's intoxication there was a total failure of proof of specific intent to commit a felony.

Evidence was introduced by the state to show that police officers on night partrol were checking business establishments and noticed the Reeves Auto Company had its combination missing from the safe inside the building. Appellant and his accomplice were found inside the building, the safe was broken into, and a sledge hammer, crow-bar and screw-driver were found nearby. A cigarette machine was pried open and cigarettes were lying on the floor. The men were arrested and a punch or pry bar was found in appellant's pocket. Appellant remarked to the officers that they were checking well because this was his first time and he got caught. There was testimony from the officers that appellant talked like an ordinary citizen and did not appear any different from anybody else. One of the officers testified he didn't know if appellant had been drinking and when asked why no drunkometer test was given, replied: 'Seen nobody intoxicated, I see no reason why.'

Appellant and his accomplice and a relative testified [239 Ind. 464] as to the amount of drinking he had done and the relative testified appellant was drunk.

This court cannot weight the evidence but can review the same to ascertain whether the verdict of the jury is sustained by sufficient evidence to support a conviction. There was sufficient evidence introduced before the jury indicating a breaking and entering by appellant with intent to commit a felony to sustain the verdict of the jury finding him guilty. The evidence of intoxication is in conflict, and on appeal we cannot resolve the conflict as that was the jury's function below. The evidence favorable to the state being sufficient to support the jury's verdict, we must hold against appellant's first contention.

Appellant next complains of the refusal of the court to...