McAdams v. State
| Decision Date | 22 October 1948 |
| Docket Number | 28430. |
| Citation | 81 N.E.2d 671,226 Ind. 403 |
| Parties | McADAMS v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Harrison Circuit Court; S. Morris Wilson, Judge.
Clyde R. Lottick, of Corydon, for appellant.
Cleon H. Foust, Atty. Gen., and Frank E. Coughlin, and Merl M Wall, Deputy Attys. Gen., , for appellee.
Appellant was charged by affidavit with unlawfully, feloniously and burglariously breaking and entering the dwelling house of Georgia Franz with the intent, unlawfully to take and carry away the goods, chattels and personal property of said Georgia Franz. It will be observed that the charge substantially follows the language of the first degree burglary statute. Burns' 1942 Replacement, § 10-701(a). The jury found defendant guilty of burglary in the second degree, but no question is raised as to the propriety of such a verdict on such an affidavit. Defendant was sentenced to imprisonment for from two to five years, as prescribed by the second degree burglary statute. Burns' 1942 Replacement, § 10-701(b).
By motion to quash and motion in arrest of judgment defendant attacked the affidavit for failure to allege that the breaking and entering was in the night time. It is his position that by common law it is necessary that burglary be committed in the night time, and that the legislature, by failing to prescribe otherwise, in effect retained the common law requirement that the offense be committed at night. With this we cannot agree. It is true that when a public offense has been declared by statute in the generic terms of the common law without more particular definition, courts will resort to the common law for the particular acts constituting the offense, Glover v. State, 1912, 179 Ind. 459, 101 N.E. 629, 45 L.R.A.,N.S., 473; Ledgerwood v. State, 1892, 134 Ind. 81, 89, 33 N.E. 631. It is also accepted in Indiana that when a crime is not specifically and well defined the courts may refer to the common law for a definition and the common law definition will be adopted. Simpson v. State, 1925, 197 Ind. 77, 78, 149 N.E. 53; State v. Patton, 1902, 159 Ind. 248, 64 N.E. 850. We must bear in mind, however, that Indiana provided by statute almost 100 years ago that, 'Crimes and misdemeanors shall be defined and punishment therefor fixed by statutes of this state and not otherwise,' Burns' 1942 Replacement, § 9-2401, and therefore in Indiana there is no common law burglary. Sweet v. State, 1941, 218 Ind. 182, 193, 31 N.E.2d 993. The statute, pursuant to which this affidavit was prepared, defines first degree burglary as the breaking and entering of any dwelling house or other place of human habitation with intent to commit a felony therein. Acts of 1941, ch. 148, § 4, p. 447; Burns' 1942 Replacement, § 10-701(a). The rules for which appellant contends are therefore not controlling because burglary in the first degree has not been made an offense in generic terms only, but the crime has been specifically and well defined and resort to the common law is not necessary to determine the acts required to constitute the offense.
Appellant cites the case of State v. Dailey, 1922, 191 Ind. 678, 134 N.E. 481, 20 A.L.R. 1004, and we have not failed to take careful note of same. In that case the appellee was charged with the crime of murder. The indictment showed upon its face that death occurred more than one year and one day after the infliction of the alleged mortal wound. The statute defines murder with some particularity but failed to include the requirement that death should occur within a year and a day after the occurrence which is alleged to have caused death, and this court held that the common law rule of a year and a day should govern and that, even though not specified in the statute, the showing in the affidavit that more than a year and a day had elapsed after the infliction of the alleged mortal wound made the indictment bad. Appellant says that this court held in that case that the legislature, by silence, adopted the common law rule of a year and a day, and that, by analogy, it must be said that in the statute before us the legislature, by silence, adopted the rule that burglary of a dwelling house must be committed in the night time. In a murder case the lapse of time between the overt act charged and the resulting death involves the element of causal connection and the real question is one of evidence. That is not true in the case before us. Here, if we accept appellant's theory, the time when the offense is committed goes to the substance of the offense. We are not willing to extend the rule laid down in the Dailey case further, and we hold that the burglary statute here involved defines the crime, not in generic or general terms, but definitely and particularly, and it is not necessary or proper to look to the common law for additional elements necessary to constitute the crime which the legislature has, we may presume, deliberately omitted.
In the course of the trial it developed that a search or searches of appellant's home had been made and a certain broken, brown jar was discovered by one such search and offered in evidence. Objection was made to the same because the search was made without a search warrant. There is evidence which indicates that officers went to appellant's home on at least two occasions. On one of these occasions his wife accompanied them and he was not present. His wife entered the house and handed out certain articles to the officers who did not enter the house at all. There was no evidence that the articles obtained upon this occasion were offered in evidence or had anything to do with appellant's trial or conviction. For these reasons we are unable to hold that there was a search, illegal or otherwise, or, if there was, that appellant was prejudiced in any way.
Upon a second occasion officers went to appellant's house and entered and obtained the broken, brown jar which was offered in evidence in this case. The officers did not have a search warrant, but before they went to the house they talked to appellant and he told them to go ahead and search; that they would not find anything. Appellant admitted that no violence was used or threats made and that he made no protest. There may be a legal search without a warrant. A man may waive his constitutional right against search and seizure by consenting thereto, and if he does so knowingly and freely and without coercion he cannot object to the use of evidence obtained upon such search. Shuck v. State, 1944, 223 Ind. 155, 167, 59 N.E.2d 124; Dearing v. State, Ind.Sup., 1948, 79 N.E.2d 535, 536; 22 C.J.S., Criminal Law, § 657. According to the uncontradicted evidence, appellant consented to the search and there was no evidence that he was not acting knowingly and voluntarily and without coercion. We hold, therefore, that this search was not illegal and that, if otherwise competent, the broken, brown jar obtained upon this search and offered in evidence was properly admitted for what it was worth in an evidentiary way, which we will discuss later.
Appellant filed a motion for a new trial in which he alleged that there was insufficient evidence to sustain the verdict. This, we think, was true. As constituting some evidence of guilt the State points to written statements of appellant's wife and his son. Each of them was placed upon the witness stand by the State. Apparently the State hoped to prove by these witnesses facts tending to establish appellant's guilt and admissions of the appellant, but each of the witnesses denied the facts the State sought to illicit and denied that appellant had made the admissions sought to be proved. Thereupon signed statements by each of the witnesses were produced by the State, in which statements the witnesses recited facts and said that appellant had admitted facts which tended strongly to establish his guilt. Over objections these statements were admitted in evidence, but at the time the court stated that they were admitted for the sole purpose of impeachment and instructed the jury to that effect and that they should be considered by the jury for no other purpose. The court was right about this. The statements were pure hearsay and, admitted over objection, did not constitute proof of the facts alleged therein.
There was no direct evidence that appellant was guilty of the burglary charged. To sustain the verdict the State must rely upon just two circumstances. One was that the brown half-gallon jar belonging to Mrs. Franz above referred to was found in the house occupied by appellant. The other was that defendant fled and was arrested in a nearby county. We must...
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