Presley v. State, No. 272A98

Docket NºNo. 272A98
Citation284 N.E.2d 526, 152 Ind.App. 637, 31 Ind.Dec. 592
Case DateJune 29, 1972
CourtCourt of Appeals of Indiana

Page 526

284 N.E.2d 526
152 Ind.App. 637
Junior Harold PRESLEY, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 272A98.
Court of Appeals of Indiana, First District.
June 29, 1972.

[152 Ind.App. 638]

Page 527

Don P. Campbell, Covington, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

ROBERTSON, Presiding Judge.

This is an appeal from the Parke Circuit Court wherein the defendant, Junior Harold Presley, was tried by jury and found guilty of the crime of first degree burglary. Presley's motion to correct errors, which was overruled by the trial court, alleges that the verdict is contrary to law and not sustained by sufficient evidence for the following reasons:

1. That the affidavit does not set forth facts sufficient to constitute an offense and is insufficient to sustain a conviction of first degree burglary.

2. That the court erred in giving to the jury State's Instruction Number Five.

3. That the court erred in admitting into evidence a camera which was obtained by an illegal search and seizure.

The allegedly defective affidavit upon which Presley and his accomplice were prosecuted and convicted reads:

'Gary Cooper being duly sworn upon his oath says: That Junior Harold Presley and Vernon Eugene Judy, on or about the 26th day of July, 1970, at and in the county of Parke, in the State of Indiana, did then and there unlawfully, feloniously and burglarously break and enter into the dwelling house of James Brook in which the said James Brook then lived, with the intent to commit a felony therein, to-wit: To unlawfully

Page 528

take, steal and carry away the goods and chattels and personal property of the said James Brook, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana.'

It is argued that the affidavit is defective in that it charges the defendant with breaking and entering with the intent 'to [152 Ind.App. 639] unlawfully take, steal, and carry away goods . . .' which constitutes the elements of the offense of larceny. Prior to the enactment of the Offenses Against Property Act, IC 1971, 35--17--5--1, Ind.Ann.Stat. § 10--3028 (1971 Supp.) at seq., in 1963, larceny was a statutory offense. The larceny statutes, however, were repealed in 1963 and replaced by the theft statutes. It is, therefore, contended that since the offense of larceny rather than theft was set forth as the intended felony of the breaking and entering that the affidavit omitted an essential element and failed to properly inform the defendant with sufficient certainty of the charges against him. The logic of this contention breaks down with the realization that the Offenses Against Property Act did not eradicate the offense of larceny but rather consolidated larceny as well as several other theft crimes with the exception of robbery under the general heading of theft, and abandoned the tradictional use of such terms as larceny. The intent of the legislature to do so is expressly stated in IC 35--17--5--2, Ind.Ann.Stat. § 10--3029:

'Specifically, it is the purpose of this act to consolidate all of the theft group of crimes except robbery, and traditional terminology has been abandoned in order that that purpose may be achieved. Consequently, whenever the terms 'larceny,' 'obtaining by false pretenses,' 'embezzlement,' 'receiving or concealing property knowing it to have been stolen,' 'blackmail,' or similar terms are used in any existing procedural or substantive statute or rule, they shall be construed to mean theft as described herein. (Acts 1963 (Spec.Sess.), ch. 10, § 2, p. 10).'

While the use of the term 'larceny' has been abandoned in favor of 'theft' it is nonetheless clear from the expressed legislative intent that the offense of larceny survives. Thus, we are unable to agree with the argument that 'defendant was charged with breaking and entering into the house of James Brook with the intent to commit a crime that no longer exists in the State of Indiana'. Our disagreement with this argument is further supported by Hanrahan v. State (1968), 251 Ind. 325, 241 N.E.2d 143, where it was contended[152 Ind.App. 640] that the affidavit upon which the defendant was prosecuted and convicted of issuing a fraudulent check and forgery was grounded in Ind.Ann.Stat. § 10--2105 (Burns 1956) which was...

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16 practice notes
  • Cooper v. State, No. 2--773A170
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 November 1976
    ...Ford v. State (1971), 257 Ind. 498, 275 N.E.2d 808; Alcorn v. State (1970), 255 Ind. 491, 265 N.E.2d 413; Presley v. State (1972), 152 Ind.App. 637, 284 N.E.2d The combination of the needle marks on Cooper's arms and his view of the needle in the car Cooper had recently been driving created......
  • Ludlow v. State, No. 2-573A110
    • United States
    • 30 October 1973
    ...participants in a 'pot party'.) Robertson, P.J., speaking for the First District of this court in Presley v. State, Page 841 Ind.App., 284 N.E.2d 526, at pages 529-530 (1972) 'What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for......
  • McNeely v. State, No. 74A01-8802-CR-61
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 November 1988
    ...517; Fox v. State (1980), Ind.App., 413 N.E.2d 665; Seay v. State (1976), 168 Ind.App. 252, 342 N.E.2d 879; and Presley v. State (1972), 152 Ind.App. 637, 284 N.E.2d 526. In each of these cases the giving of an identical instruction to that given in this case was upheld on McNeely argues, h......
  • Garner v. State, No. 2--174A3
    • United States
    • 10 April 1975
    ...(Emphasis supplied.) 272 N.E.2d at 616. See also, Ludlow v. State (1973), Ind.App., 302 N.E.2d 838; Presley v. State (1972), Ind.App., 284 N.E.2d 526; Harris v. United States (1968), 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; McCray v. Illinois (1967), 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed......
  • Request a trial to view additional results
16 cases
  • Cooper v. State, No. 2--773A170
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 November 1976
    ...Ford v. State (1971), 257 Ind. 498, 275 N.E.2d 808; Alcorn v. State (1970), 255 Ind. 491, 265 N.E.2d 413; Presley v. State (1972), 152 Ind.App. 637, 284 N.E.2d The combination of the needle marks on Cooper's arms and his view of the needle in the car Cooper had recently been driving created......
  • Ludlow v. State, No. 2-573A110
    • United States
    • 30 October 1973
    ...participants in a 'pot party'.) Robertson, P.J., speaking for the First District of this court in Presley v. State, Page 841 Ind.App., 284 N.E.2d 526, at pages 529-530 (1972) 'What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for......
  • McNeely v. State, No. 74A01-8802-CR-61
    • United States
    • Indiana Court of Appeals of Indiana
    • 3 November 1988
    ...517; Fox v. State (1980), Ind.App., 413 N.E.2d 665; Seay v. State (1976), 168 Ind.App. 252, 342 N.E.2d 879; and Presley v. State (1972), 152 Ind.App. 637, 284 N.E.2d 526. In each of these cases the giving of an identical instruction to that given in this case was upheld on McNeely argues, h......
  • Garner v. State, No. 2--174A3
    • United States
    • 10 April 1975
    ...(Emphasis supplied.) 272 N.E.2d at 616. See also, Ludlow v. State (1973), Ind.App., 302 N.E.2d 838; Presley v. State (1972), Ind.App., 284 N.E.2d 526; Harris v. United States (1968), 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; McCray v. Illinois (1967), 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed......
  • Request a trial to view additional results

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