Link v. State, 28954
| Decision Date | 23 June 1953 |
| Docket Number | No. 28954,28954 |
| Citation | 232 Ind. 466,113 N.E.2d 43 |
| Parties | LINK v. STATE. |
| Court | Indiana Supreme Court |
Raymond Demaree and Charles W. Symmes, of Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., Carl Humble, Deputy Atty. Gen. , for appellee.
This is an appeal from a judgment on a finding made by the court, without the intervention of a jury, that the appellant was guilty of burglary in the second degree, that he be imprisoned in the State Prison for a term not less than two nor more than five years and be disfranchised for a period of two years. The error assigned here is that the trial court erred in overruling appellant's motion for a new trial. The sufficiency of the evidence to sustain the finding is the only issue now presented.
The affidavit charged that the appellant, on the 22nd day of April, 1950, feloniously broke and entered a store building owned and operated by August Martin Duennes located in the City of Indianapolis, with the felonious intent to commit larceny. Burglary in the second degree is defined by Sec. 10-701, Clause (b), Burns' 1942 Replacement, and the offense is not committed unless the accused breaks and enters. 1 Section 2 of Ch. 54 of the 1929 Acts required either a breaking or an entering to constitute burglary in the second degree. This section was amended by Sec. 1 of Ch. 212 of the 1935 Acts which only required an entering. The present Act defining burglary in the second degree is an amendment of the latter act. Dedrick v. State, 1936, 210 Ind. 259, 2 N.E.2d 409, was decided under the 1929 Act, Sec. 10-701, Burns' 1933, and so is not in point in this appeal.
At about 2:25 o'clock the morning of April 22, 1950, two police officers observed the appellant standing in front of a door of a store owned and operated by August Martin Duennes at 420 East 22nd Street in the City of Indianapolis. The door had two locks, one above the other. The appellant had a crow bar, and had forced the bottom lock. He was prying to break the top lock when the policemen drove up in a car, and without waiting until he had completed the breaking, they arrested him.
When the evidence is viewed most favorably to the State, it discloses that appellant had one foot partially in the bottom of the door trying to pry the door open, the bottom lock was completely off, and the top lock was loosened so that it required small effort to open the door.
The facts in this case resemble the facts in Mattox v. State, 1913, 179 Ind. 575, 576, 101 N.E. 1009, where the burglary was not consummated. The court said, ...
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Bellmore v. State
...use of the slightest force in pushing aside a door in order to enter does constitute a breaking through the doorway." Link v. State (1953), 232 Ind. 466, 113 N.E.2d 43. A breaking is proved by showing that even slight force was used to gain unauthorized entry, as where a door left partially......
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Sluss v. State, 1-282A41
...(1980) Ind. 408 N.E.2d 1281. However, the offense of burglary is not committed unless the accused breaks and enters. Link v. State, (1953) 232 Ind. 466, 113 N.E.2d 43. It is desirable to first establish the corpus delicti before showing a confession or statement against interest by the defe......
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McCormick v. State
...of the structure. While it is not sufficient to show that a defendant has placed a foot partially inside a door, (Link v. State (1953), 232 Ind. 466, 113 N.E.2d 43) or inserted an iron bar between the jam (sic) and the door, (Mattox v. State (1913), 179 Ind. 575, 101 N.E. 1009), a showing t......
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Cockerham v. State, 30612
...use of the slightest force in pushing aside a door in order to enter does constitute a breaking through the doorway. Link v. State (1953), 232 Ind. 466, 113 N.E.2d 43. Opening an unlocked door or raising an unlocked window is sufficient to constitute a In Sims v. State (1893), 136 Ind. 358,......