Spivey v. State, No. 671S159

Docket NºNo. 671S159
Citation274 N.E.2d 227, 257 Ind. 257
Case DateOctober 22, 1971
CourtSupreme Court of Indiana

Page 227

274 N.E.2d 227
257 Ind. 257
Willie Joe SPIVEY, Appellant,
v.
STATE of Indiana, Appellee.
No. 671S159.
Supreme Court of Indiana.
Oct. 22, 1971.

Hall Cochrane, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for appellee.

[257 Ind. 258] HUNTER, Judge.

On October 22, 1970, the appellant, Willie Joe Spivey, was charged by indictment with the offense of second degree burglary. He was thereafter arrested on said charge March 9, 1971; on March 10, 1971, he waived arraignment and entered a plea of not guilty. Subsequently, on March 22, 1971, the defendant in person and by counsel waived his right to a jury trial. Thereafter trial was held March 25, 1971, before the Honorable John T. Davis, Judge, Marion Criminal Court Division One and he was found guilty as charged. Following the filing of the pre-commitment report he was ordered to serve an indeterminate sentence of two (2) to five (5) years at the Indiana Reformatory.

On April 13, 1971, the appellant filed his motion to correct errors which was overruled by the Court. On April 26, 1971, pauper counsel was appointed for this appeal and the appeal was initiated.

The indictment under which appellant was tried and convicted omitting caption and formal parts reads as follows:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present, that, WILLIE JOE SPIVEY on or about the 22nd day

Page 228

of October, A.D.1970, at and in the County of Marion and in the State of Indiana, did there and then unlawfully, feloniously and burglariously break and enter into the building and structure of Charles W. Jones d/b/a Quick Quality Cleaners, then and there situate at 2229 North College Avenue, in the City of Indianapolis, County of Marion, State of Indiana, which said building and structure was not a place of human habitation, with the intent to commit a felony therein, to wit: to unlawfully, feloniously and knowingly obtain and exert unauthorized control over property of said Charles W. Jones d/b/a Quick Quality Cleaners, and to deprive the said Charles W. Jones d/b/a Quick Quality Cleaners permanently of the use and benefit of said property, then and there being * * * contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

[257 Ind. 259] The statute governing second degree burglary as found in IC 1971, 35--13--4--4 as found in Ind.Ann.Stat. § 10--701 (1956 Repl.) provides in part:

'Whoever breaks and enters into any * * * building or structure other than a dwelling-house or place of human habitation, with the intent to commit a felony therein, shall be guilty of burglary in the second degree, and upon conviction shall be imprisoned not less than two (2) years nor more than five (5) years and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period * * *.'

The appellant's motion to correct errors is as follows:

'* * * The defendant says that the decision of the Court is contrary to the evidence.

That the decision of the Court is contrary to law.

Police Officer Amos testified that he went to defendants apartment and had him sent to the hospital. No one saw the defendant enter the building occupied by Quick Quality Cleaners and defendant stated he never went inside and did see two men throw a brick through the window.

The identification of defendant by officers did not place the defendant in said building.

WHEREFORE the defendant sues and pray the Court that he be granted a new trial * * *'

The only issue presented by this appeal is the challenge to the sufficiency of the evidence to support the conviction. The appellant contends that the State has failed to meet its statutory duty to produce evidence of probative value of a direct or circumstantial nature to prove all of the elements of the crime charged against the appellant as set out in the indictment, to wit: (1) a breaking and entering by the appellant (2) of a structure (cleaning establishment) other than a dwelling house or place of human habitation, (3) coupled with the intent to commit a felony in such structure, to wit: theft of personal property from the cleaning establishment.

[257 Ind. 260] It seems to be the appellant's position that since there is no evidence, that is to say, eye-witness...

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59 practice notes
  • Board of Com'rs of Howard County v. Kokomo City Plan Commission, No. 2-473A88
    • United States
    • Indiana Court of Appeals of Indiana
    • May 20, 1974
    ...the appellant's motion to correct errors, and when not so specified will be deemed waived on appeal. See, Spivey v. State, (1971) Ind., 274 N.E.2d 227; Saloom v. Holder, (1973) Ind.App., 304 N.E.2d 217 (specificity as to constitutional grounds); State v. Hladik, (1973) Ind.App., 302 N.E.2d ......
  • Lugar v. State ex rel. Lee, No. 2-675A145
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1978
    ...to execution. 3 Edwards v. State (1976), Ind., 352 N.E.2d 730; Finch v. State (1975), Ind., 338 N.E.2d 629; Spivey v. State (1971), 257 Ind. 257, 274 N.E.2d 227; Macken v. City of Evansville (1977), Ind.App., 362 N.E.2d 203; Sacks v. State (1977), Ind.App., 360 N.E.2d 21; Kelly v. Bank of R......
  • Ingmire v. Butts, No. 2--1172A111
    • United States
    • Indiana Court of Appeals of Indiana
    • September 25, 1975
    ...rule . . . and therefore amounts to a waiver. TR. 59(B), (G). Bennett v. State (1973), Ind.App., 304 N.E.2d 827; Spivey v. State (1971), 257 Ind. 257, 274 N.E.2d 227; Matthew v. State (1972), Ind.App., 289 N.E.2d 336; Weingart v. State (1973), Ind.App., 301 N.E.2d 222; State v. Hladik (1973......
  • Bennett v. State, No. 2--473A101
    • United States
    • Indiana Court of Appeals of Indiana
    • December 26, 1973
    ...specificity of the facts and grounds upon which errors are based has been often stated in recent case law: Spivey v. State (1971), Ind., 274 N.E.2d 227; Matthew v. State (1972), Ind.Ct.App., 289 N.E.2d 336; Weingart v. State (1973), Ind.Ct.App., 301 N.E.2d 222; State v. Hladik (1973), Ind.C......
  • Request a trial to view additional results
59 cases
  • Board of Com'rs of Howard County v. Kokomo City Plan Commission, No. 2-473A88
    • United States
    • Indiana Court of Appeals of Indiana
    • May 20, 1974
    ...the appellant's motion to correct errors, and when not so specified will be deemed waived on appeal. See, Spivey v. State, (1971) Ind., 274 N.E.2d 227; Saloom v. Holder, (1973) Ind.App., 304 N.E.2d 217 (specificity as to constitutional grounds); State v. Hladik, (1973) Ind.App., 302 N.E.2d ......
  • Lugar v. State ex rel. Lee, No. 2-675A145
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1978
    ...to execution. 3 Edwards v. State (1976), Ind., 352 N.E.2d 730; Finch v. State (1975), Ind., 338 N.E.2d 629; Spivey v. State (1971), 257 Ind. 257, 274 N.E.2d 227; Macken v. City of Evansville (1977), Ind.App., 362 N.E.2d 203; Sacks v. State (1977), Ind.App., 360 N.E.2d 21; Kelly v. Bank of R......
  • Ingmire v. Butts, No. 2--1172A111
    • United States
    • Indiana Court of Appeals of Indiana
    • September 25, 1975
    ...rule . . . and therefore amounts to a waiver. TR. 59(B), (G). Bennett v. State (1973), Ind.App., 304 N.E.2d 827; Spivey v. State (1971), 257 Ind. 257, 274 N.E.2d 227; Matthew v. State (1972), Ind.App., 289 N.E.2d 336; Weingart v. State (1973), Ind.App., 301 N.E.2d 222; State v. Hladik (1973......
  • Bennett v. State, No. 2--473A101
    • United States
    • Indiana Court of Appeals of Indiana
    • December 26, 1973
    ...specificity of the facts and grounds upon which errors are based has been often stated in recent case law: Spivey v. State (1971), Ind., 274 N.E.2d 227; Matthew v. State (1972), Ind.Ct.App., 289 N.E.2d 336; Weingart v. State (1973), Ind.Ct.App., 301 N.E.2d 222; State v. Hladik (1973), Ind.C......
  • Request a trial to view additional results

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