Nichols v. State

Decision Date20 September 1973
Docket NumberNo. 2--1072A84,2--1072A84
Citation157 Ind.App. 605,301 N.E.2d 246
PartiesEdward NICHOLS, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Appellate Court
Richard L. Milan, Craven & Milan, Indianapolis, for appellant

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY

This is an appeal by Defendant-appellant, Edward Nichols, Jr. (Nichols), from a conviction of Entering to Commit a Felony in violation of Ind.Ann.Stat. § 10--704 (Burns 1956 Repl.) IC 1971, 35--13--4--5 claiming, inter alia, insufficient evidence to support the conviction.

We reverse.

FACTS

The facts and evidence most favorable to the State are:

In March of 1972 Lester McGuire (McGuire) and a partner owned and operated a business known as 'Indianapolis Stage Rentals, Inc.' at 320 N. Capitol Avenue, Indianapolis, Indiana.

At approximately 4:00 P.M. on March 6, 1972, McGuire left the Indianapolis Stage McGuire testified at the trial that when he returned to the office a toolbox had been moved twelve to fifteen feet from the place he last remembered it and that the lid of the toolbox was open. He further testified that the glass in the small frame door in the front of the building was broken out.

Rentals office but was recalled by his partner at approximately 11:00 P.M. on that same day because of an apparent burglary earlier in the evening.

It was also his testimony that he had no knowledge of who may have entered or left the building between 4:00 P.M. and 11:00 P.M. on March 6, 1972 and that he had no knowledge of whether or not his partner had entered the building in his absence or whether his partner had moved the toolbox.

The Indianapolis Police Department obtained certain latent fingerprints from the lid of the toolbox and from some of the broken glass found near the front door. These latent fingerprints were identified at the trial as Nichols' fingerprints.

In its Brief the State draws our attention to the fact that Nichols was observed by a police officer inside the building and running from the building where he was captured approximately one block away by another police officer. These facts, however, appear only in the pre-sentence investigative report and were not entered as evidence at the trial.

Nichols was charged by Affidavit with the crime of Second Degree Burglary. On May 15, 1972, trial was had before a jury culminating in a verdict of Entering to Commit a Felony (Second Degree Durglary).

ISSUE

Was the evidence sufficient to sustain Nichols' conviction for Entering With the Intention to Commit a Felony?

Nichols contends that the evidence was insufficient in every respect to sustain his conviction for entering the Indianapolis Stage Rentals building with the intention to commit a felony.

The State, however, replies that the evidence was sufficient to sustain Nichols' conviction for the reason that his fingerprints were found inside the building on the toolbox and broken glass found on the floor.

Nichols also claims errors relating to the refusal of the trial court to grant a continuance and his forced submission to fingerprinting prior to trial. Because this case is reversed for insufficient evidence to support Nichols' conviction we need not consider these questions.

DECISION

CONCLUSION--It is our opinion that the evidence was not sufficient to sustain Nichols' conviction for Entering With the Intention to Commit a Felony because there was no evidence, direct or circumstantial, tending to prove he entered the building with the intent of committing a felony.

Nichols was convicted under the provisions of Ind.Ann.Stat. § 10--704 (Burns 1956 Repl.) which makes it a crime for anyone to enter certain named buildings (including ginseng gardens and interurbans) '. . . with the intent to commit a felony therein, . . .'

The existence of an intention to commit a felony at the very moment the defendant enters the building is an essential element of this crime. The evidence must not only show that the defendant entered the building, but it also must show beyond a reasonable doubt that he entered the building with an intention to commit a felony therein. Abshire v. State, (1927) 199 Ind. 478, 158 N.E. 228; Crawford v. State, (1968) 251 Ind. 437, 241 N.E.2d 795.

While the specific intent may be proven by circumstantial evidence, such evidence will not be sufficient if it merely tends to arouse suspicion of guilt. Bradley v. State, (Ind.App.1972) 287 N.E.2d 759; Easton v. State, (1967) 248 Ind. 338, 228 N.E.2d 6; Baker v. State, (1957) 236 Ind. 55, 138...

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10 cases
  • Clayton v. State, 2--476A165
    • United States
    • Indiana Appellate Court
    • September 22, 1976
    ...establish intent to commit a felony. Faulkner v. State (1973), 260 Ind. 82, 292 N.E.2d 594; Nichols v. State (2d Dist. 1973), Ind.App., 301 N.E.2d 246. While an element of an offense (here, intent to commit a felony) may be proven by circumstantial evidence, evidence which establishes only ......
  • Bonds v. State
    • United States
    • Indiana Supreme Court
    • June 22, 1982
    ... ... In support of his contention, he relies on Davis v. State, (1980) Ind.App., 398 N.E.2d 704, and Nichols v. State, (1973) 157 Ind.App. 605, 301 N.E.2d 246; those cases stand for the respective and concomitant propositions that the intention to commit a felony in conjunction with a breaking and entering may be inferred from the time, force, and manner of entry, and that the intention to commit a felony ... ...
  • Long v. State
    • United States
    • Indiana Appellate Court
    • October 20, 1975
    ...N.E.2d 594; Crawford v. State (1968), 251 Ind. 437, 241 N.E.2d 795; Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6; Nichols v. State (1973), Ind.App., 301 N.E.2d 246. Similarly, evidence of flight alone may not be used to infer the element of intent, since flight simply indicates a cons......
  • Staggers v. State
    • United States
    • Indiana Supreme Court
    • May 8, 1985
    ... ... In addition, he claims that the State failed to exclude the possibility that he had legitimately left his fingerprints in Eck's apartment. His argument, however, is without merit. This is not a case such as Nichols v. State, (1973) 157 Ind.App. 605, 610, 301 N.E.2d 246, 249, wherein the Court of Appeals reversed a ... conviction for second degree burglary of a business because the only evidence connecting the appellant with the burglary was his latent fingerprints on the door and on a tool box located ... ...
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