McAdams v. State, No. 28430.

Docket NºNo. 28430.
Citation226 Ind. 403, 81 N.E.2d 671
Case DateOctober 22, 1948
CourtSupreme Court of Indiana

226 Ind. 403
81 N.E.2d 671

McADAMS
v.
STATE.

No. 28430.

Supreme Court of Indiana.

Oct. 22, 1948.


Charles McAdams was convicted of second-degree burglary, and he appeals.

Judgment reversed with instructions to sustain defendant's motion for new trial.

[81 N.E.2d 672]

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., (Robert W. Davis, Pros. Atty., of Corydon, of counsel), for appellee.


YOUNG, Chief Justice.

Appellant was charged by affidavit with unlawfully, feloniously and burglariously breaking and entering the dwelling house of Georgia Franz with the intent, unlawfully,

[81 N.E.2d 673]

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

[81 N.E.2d 674]

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...

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47 practice notes
  • Kestler v. State, No. 28346.
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Abril 1949
    ...to observe the witnesses. The correct rules and their differences are stated in the late case of McAdams v. State, 1948, Ind.Sup., 81 N.E.2d 671. In the case of Brown v. State, 1941, 219 Ind. 21, 22, 23, 36 N.E.2d 759, 760, this court had before it a case where the evidence was largely circ......
  • Hampton v. State , No. 84S04–1103–PC–161.
    • United States
    • Indiana Supreme Court of Indiana
    • 14 Febrero 2012
    ...634, 636–40, 401 N.E.2d 331, 334–35 (1980), overruled on other grounds by Hicks v. State, 544 N.E.2d 500 (Ind.1989); McAdams v. State, 226 Ind. 403, 412, 81 N.E.2d 671, 675 (1948); Gears v. State, 203 Ind. 400, 407–08, 180 N.E. 592, 594–95 (1932); Wolfe v. State, 200 Ind. 557, 564–68, 159 N......
  • Fortson v. State, No. 82S04-0811-CR-592.
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Enero 2010
    ...from which a court or jury may draw an inference of guilt"); Gilley v. State, 227 Ind. 701, 88 N.E.2d 759, 761 (1949); McAdams v. State, 226 Ind. 403, 81 N.E.2d 671, 674-75 (1948) (in a second degree burglary case, the Court noted that "[i]t is true that unexplained, exclusive possession of......
  • Rogers v. State, No. 1072S143
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Septiembre 1974
    ...evidence was not introduced; therefore, an instruction to limit the effect of such evidence was not necessary. McAdams v. State (1948), 226 Ind. 403, 81 N.E.2d [262 Ind. 323] 671; Davis v. Hardy (1991), 76 Ind. 272; Frick v. Bickel (1944), 115 Ind.App. 114, 54 N.E.2d 'It is, indeed, no more......
  • Request a trial to view additional results
47 cases
  • Kestler v. State, No. 28346.
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Abril 1949
    ...to observe the witnesses. The correct rules and their differences are stated in the late case of McAdams v. State, 1948, Ind.Sup., 81 N.E.2d 671. In the case of Brown v. State, 1941, 219 Ind. 21, 22, 23, 36 N.E.2d 759, 760, this court had before it a case where the evidence was largely circ......
  • Hampton v. State , No. 84S04–1103–PC–161.
    • United States
    • Indiana Supreme Court of Indiana
    • 14 Febrero 2012
    ...634, 636–40, 401 N.E.2d 331, 334–35 (1980), overruled on other grounds by Hicks v. State, 544 N.E.2d 500 (Ind.1989); McAdams v. State, 226 Ind. 403, 412, 81 N.E.2d 671, 675 (1948); Gears v. State, 203 Ind. 400, 407–08, 180 N.E. 592, 594–95 (1932); Wolfe v. State, 200 Ind. 557, 564–68, 159 N......
  • Fortson v. State, No. 82S04-0811-CR-592.
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Enero 2010
    ...from which a court or jury may draw an inference of guilt"); Gilley v. State, 227 Ind. 701, 88 N.E.2d 759, 761 (1949); McAdams v. State, 226 Ind. 403, 81 N.E.2d 671, 674-75 (1948) (in a second degree burglary case, the Court noted that "[i]t is true that unexplained, exclusive possession of......
  • Rogers v. State, No. 1072S143
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Septiembre 1974
    ...evidence was not introduced; therefore, an instruction to limit the effect of such evidence was not necessary. McAdams v. State (1948), 226 Ind. 403, 81 N.E.2d [262 Ind. 323] 671; Davis v. Hardy (1991), 76 Ind. 272; Frick v. Bickel (1944), 115 Ind.App. 114, 54 N.E.2d 'It is, indeed, no more......
  • Request a trial to view additional results

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