Penman v. State, No. 2--1074A253

Docket NºNo. 2--1074A253
Citation163 Ind.App. 583, 325 N.E.2d 478
Case DateApril 10, 1975
CourtCourt of Appeals of Indiana

Page 478

325 N.E.2d 478
163 Ind.App. 583
Earl PENMAN, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 2--1074A253.
Court of Appeals of Indiana, First District.
April 10, 1975.

[163 Ind.App. 584]

Page 479

T. H. St. Clair, Lewis, Bowman, St. Clair, Bennett & Wagner, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert S. Spear, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

Page 480

ROBERTSON, Chief Judge.

Penman appeals from his conviction for entering with intent to commit a felony.

We are asked to determine whether the evidence was sufficient to establish the elements of the offense and proper venue, and whether imposition of the prison sentence constituted cruel and unusual punishment.

We affirm the conviction.

The facts as viewed most favorably toward the State are as follows: Shortly after midnight on December 29, 1973, Robert Smith observed Penman throw a brick through the window of a poolroom at 545 Indiana Avenue in Indianapolis. Smith then observed Penman finish breaking the window with his cane. He left the scene to inform the poolroom's owner, Wes Manston, and the two men returned to the scene where they observed Penman leaning through the broken window attempting to pry open the coin box on a jukebox located near the window.

Manson approached Penman and detained him until an Indianapolis police officer arrived and made the arrest. Penman had been drinking, but the evidence was conflicting as to whether he was 'drunk'.

Penman was charged with second degree burglary. After a jury trial, he was convicted of the lesser included offense of entering to commit a felony and sentenced accordingly.

Penman first contends that the evidence was not sufficient on all elements of the offense.

The offense of entering with intent to commit a felony is provided for by IC 1971, 35--13--4--5, Ind.Ann.Stat. § 10--704:

[163 Ind.App. 585] 'Whoever enters any . . . business-house . . . with the intent to commit a felony therein, shall, on conviction, be imprisoned for not less than (1) year nor more than ten (10) years . . ..'

The State had the burden of showing that Penman entered a business house with an intent to commit a felony. Penman argues on appeal that the evidence failed to establish the requisite elements of entry and intent.

Concerning the element of entry, Penman argues that the evidence did not show that he entered the building, but only that he leaned into the building through the window. Penman asserts that he could not be convicted of 'entering' under these facts.

The crux of Penman's argument is that a person cannot be said to have 'entered' a building until his entire person is within the boundaries of the structure. We do not agree with this statement of the law. A more accurate statement is that a person has entered a structure when he has essentially put himself in a position to commit a felony within the confines 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 and the door, (Mattox v. State (1913), 179 Ind. 575, 101 N.E. 1009), a showing that defendant has leaned through a window to enable him to take money from a jukebox is sufficient to establish the element of entry.

Penman's next argument is that the State failed to prove that he had an intent to commit a felony...

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15 practice notes
  • Kroger Co. v. Haun, No. 2-576A189
    • United States
    • Indiana Court of Appeals of Indiana
    • 31 Agosto 1978
    ...operation were so glaring" as to constitute a voluntary incurrence of a known and appreciated risk. See Sullivan v. Baylor, supra, 325 N.E.2d at 478. Kroger bases its contention that Haun was contributorily negligent to two distinct (1) Under the "equal knowledge" doctrine, it is claimed th......
  • Sizemore v. State, No. 1079S295
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Octubre 1979
    ...N.E.2d 283; Jackson v. State, (1918), 187 [272 Ind. 31] Ind. 694, 121 N.E. 114. With respect to the latter, See Penman v. State, (1975), 163 Ind.App. 583, 325 N.E.2d 478; Johnson v. State, (1957), 236 Ind. 509, 141 N.E.2d 444. Indiana appellate courts have also required substantial evidence......
  • Sizemore v. State, No. 1-1277A287
    • United States
    • 29 Enero 1979
    ...338 N.E.2d 283; Jackson v. State (1918), 187 Ind. 694, 121 N.E. 114. With respect to the latter, See Penman v. State (1975), Ind.App., 325 N.E.2d 478; Johnson v. State (1957), 236 Ind. 509, 141 N.E.2d 444. Indiana appellate courts have also required substantial evidence of probative value f......
  • Butler v. State, No. 2-577-A-155
    • United States
    • Indiana Court of Appeals of Indiana
    • 2 Octubre 1978
    ...was committed. See, Weaver v. State (1963), 243 Ind. 560, 187 N.E.2d 485, 487; Woodall v. State, supra; Penman v. State (1975), Ind.App., 325 N.E.2d 478, In Critchlow v. State (1976), 264 Ind. 458, 346 N.E.2d 591, the Supreme Court of Indiana held there was ample evidence from which the jur......
  • Request a trial to view additional results
15 cases
  • Kroger Co. v. Haun, No. 2-576A189
    • United States
    • Indiana Court of Appeals of Indiana
    • 31 Agosto 1978
    ...operation were so glaring" as to constitute a voluntary incurrence of a known and appreciated risk. See Sullivan v. Baylor, supra, 325 N.E.2d at 478. Kroger bases its contention that Haun was contributorily negligent to two distinct (1) Under the "equal knowledge" doctrine, it is claimed th......
  • Sizemore v. State, No. 1079S295
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Octubre 1979
    ...N.E.2d 283; Jackson v. State, (1918), 187 [272 Ind. 31] Ind. 694, 121 N.E. 114. With respect to the latter, See Penman v. State, (1975), 163 Ind.App. 583, 325 N.E.2d 478; Johnson v. State, (1957), 236 Ind. 509, 141 N.E.2d 444. Indiana appellate courts have also required substantial evidence......
  • Sizemore v. State, No. 1-1277A287
    • United States
    • 29 Enero 1979
    ...338 N.E.2d 283; Jackson v. State (1918), 187 Ind. 694, 121 N.E. 114. With respect to the latter, See Penman v. State (1975), Ind.App., 325 N.E.2d 478; Johnson v. State (1957), 236 Ind. 509, 141 N.E.2d 444. Indiana appellate courts have also required substantial evidence of probative value f......
  • Butler v. State, No. 2-577-A-155
    • United States
    • Indiana Court of Appeals of Indiana
    • 2 Octubre 1978
    ...was committed. See, Weaver v. State (1963), 243 Ind. 560, 187 N.E.2d 485, 487; Woodall v. State, supra; Penman v. State (1975), Ind.App., 325 N.E.2d 478, In Critchlow v. State (1976), 264 Ind. 458, 346 N.E.2d 591, the Supreme Court of Indiana held there was ample evidence from which the jur......
  • Request a trial to view additional results

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