Lynch v. State

Decision Date01 April 1960
Docket NumberNo. 29700,29700
Citation165 N.E.2d 762,240 Ind. 376
PartiesDonald Paul LYNCH, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Patrick E. Chavis, Jr., Indianapolis, for appellant.

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

BOBBITT, Judge.

Appellant was charged by amended affidavit in four counts. However, we need only consider Count One which charged the crime of burglary by attempting to force an entrace into a safe under Acts 1955, ch. 156, § 1, p. 307, being § 10-702a, Burns' 1956 Replacement. Trial was by the court without the intervention of a jury, and defendant was found guilty as charged in Count One of the amended affidavit, and sentenced to the Indiana State Prison for not less than five nor more than ten years, and disfranchised for a period of five years.

The assignment of errors consists of three specifications, as follows:

1. The court erred in overruling appellant's motion to quash the indictment, [affidavit].

2. The court erred in overruling appellant's motion for a new trial.

3. The court erred in overruling appellant's motion in arrest of judgment.

First: Appellant asserts that it was error to overrule his motion to quash the amended affidavit because it failed to identify properly the safe here involved.

That part of the amended affidavit referring to the safe is as follows:

'Donald Paul Lynch * * * (did then and there unlawfully, feloniously and burglariously break and enter into the building of Atlas Super Market, Northside, Inc., a corporation located at 720 East 54th Street, City of Indianapolis, County of Marion, State of Indiana,) * * * and did then and there unlawfully, maliciously and forcibly * * * attempt to force an entrance into a safe which was then and there situated in the said building, and which safe contained United States Currency in the sum of five hundred dollars ($500.00), in lawful money, said money being the property of Atlas Super Market, Northside, Inc., a corporation, * * *.'

We think the trial court might properly have concluded from the allegation that the safe was in a building of 'Atlas Super Market, Northside, Inc.' and contained property (United States currency) of Atlas Super Market, Northside, Inc., that such safe was in the possession of Atlas Super Market, Northside, Inc., and that such company was the owner thereof for the purposes of this statute. Donnelly v. State, 1924, 194 Ind. 136, 139, 142 N.E. 219. See also: Rhoades v. State, 1946, 224 Ind. 569, 573, 70 N.E.2d 27; Sneed, Lockridge v. State, 1956, 235 Ind. 198, 201, 130 N.E.2d 32.

Second: Since the affidavit is sufficient to withstand a motion to quash, it is good against a motion in arrest of judgment, based on the same grounds. Nicholas v. State, Ind.1960, 165 N.E.2d 149; Lodyga and Mantych v. State, 1932, 203 Ind. 494, 500, 179 N.E. 542.

Third: Appellant further asserts that the decision of the trial court is contrary to law because of 'the conduct of the State of Indiana in filing, refiling, dismissing and reinstating this cause of action.'

No reference is made to pages of the transcript showing the facts to support appellant's conclusion as stated above. However, assuming, but not deciding, that appellant's statement as to the dismissals and refilings are true, no reversible error is shown here for two reasons: (1) This court will not search the record to reverse a judgment of the trial court; and (2) Under the circumstances here the prosecuting attorney was acting within his authority in submitting motions to dismiss as to prior charges (Acts 1905, ch. 169, § 114, p. 584, being § 9-910, Burns' 1956 Replacement); and in filing new charges based upon the same facts. Dye v. State, 1891, 130 Ind. 84, 29 N.E. 771; Winters v. State, 1928, 200 Ind. 48, 50, 160 N.E. 294; State v. Taylor, 1956, 235 Ind. 632, 137 N.E.2d 537.

Fourth: Finally, appellant asserts that the evidence is insufficient to support the decision of the trial court because there is no evidence that he 'forced or attempted to force the door of a safe.'

Russell Carmichael, a police officer of the City of Indianapolis, testified that on November 24, 1956, at about ten o'clock p. m. he was sent to 720 East 54th Street, Atlas Super Market, Northside, Inc. to investigate a burglary; that the building had been entered by the ventilator shaft on the roof, and when he, the owner of the store, and other policemen entered the store they found two persons, 'John Bydo and Donald Paul Lynch.' At the time this testimony was given at the trial the witness...

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5 cases
  • Miller v. State
    • United States
    • Indiana Appellate Court
    • 19 Agosto 1986
  • Johnson v. State, 31077
    • United States
    • Indiana Supreme Court
    • 1 Abril 1969
    ...v. State (1860), 14 Ind. 139; Halloran v. State (1881), 80 Ind. 586; Dye v. State (1891), 130 Ind. 87, 29 N.E. 771; Lynch v. State (1960), 240 Ind. 376, 165 N.E.2d 762. Since the dismissal in the present case occurred prior to jeopardy attaching, there was no bar to refiling an affidavit ch......
  • Walker v. State, 268
    • United States
    • Indiana Supreme Court
    • 11 Julio 1968
    ...of burglary tools near the scene of the burglary, shortly after it has been committed, is admissible evidence. Lynch v. State (1960), 240 Ind. 376, 165 N.E.2d 762. It is well settled under Indiana law that the requisite specific intent is a question for the court or jury. 'Under the settled......
  • Doss v. State, 869S180
    • United States
    • Indiana Supreme Court
    • 16 Marzo 1971
    ...the relationship between the Forty and Eight Club and the property. We need not give this point serious consideration. Lynch v. State (1959), 240 Ind. 376, 165 N.E.2d 762. (8) Appellant contends that the misspelling of the word 'et' (french meaning 'and') in the name of the corporate-owner ......
  • Request a trial to view additional results

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