Stanley v. State, No. 468S58

• Docket Nº: No. 468S58
• Citation: 252 Ind. 37, 16 Ind.Dec. 662, 245 N.E.2d 149
• Case Date: March 12, 1969
• Court: Supreme Court of Indiana

Page 149

245 N.E.2d 149 252 Ind. 37 James Floyd STANLEY, Appellant,
v.
STATE of Indiana, Appellee. No. 468S58. Supreme Court of Indiana. March 12, 1969.
Rehearing Denied April 30, 1969.

Page 150

Robert Robinson, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., John L. Price, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Judge.

This is an appeal from a conviction under an affidavit in two counts wherein the appellant was charged in the first count with entering the business house of Hook Drugs, Inc. located at 1642 East New York Street in the City of Indianapolis with the intent to commit a felony therein, to-wit: the unlawful and felonious obtaining of unauthorized control over the property of said corporation.

[252 Ind. 38] The appellant was charged in the second count of the affidavit with the unlawful possession and control of narcotic drugs, to-wit: morphine and dilaudid, derivatives of opium.

Trial was by the Court without the intervention of a jury resulting in a finding of guilty on each of the two counts. Defendant was thereafter sentenced to the Indiana State Prison for two terms: one for one to ten years, and one for not less than two nor more than ten years.

Appellant's timely motion for a new trial was overruled and after appointment of counsel for the purpose of perfecting an appeal a belated, amended motion for new trial was filed and overruled.

The appellant assigns as error in this Court the overruling of the belated motion for new trial, which motion presents the questions that the decision of the Court is not sustained by sufficient evidence, and that the decision of the Court is contrary to law.

Appellant first contends that there is no evidence in this case that he unlawfully entered the business house of Hook Drugs, Inc. with the intent to commit a felony therein. There was no evidence of any external damage to the building indicating a forceful entry on the part of the appellant; in fact, the uncontroverted evidence concerning his entry is that he did, in fact, enter the building during the regular business hours. It is, therefore, a question of whether or not there is sufficient evidence in the record to support the Trial Court's finding that he did, in fact, enter with the intent to commit a felony. The manager of the Hook Drug Store testified that he personally closed the store at 10:00 o'clock P.M. on the day in question. He stated that he followed his normal closing routine by locking all the doors and checking the store to see if any person might be remaining. He further testified that he saw no one in the store; he checked the telephone booth in the store where the appellant claims he had fallen asleep during the time the store was open. No one was in the telephone[252 Ind. 39] booth. He further testified that the drawer containing narcotic drugs was locked at the time he left the store.

The appellant took the witness stand in his own behalf and testified that he had entered the store in question at about 11:00 o'clock and went to the telephone booth at the back of the store. He testified that he had taken some dilaudid at about 8:00 or 9:00 o'clock that evening and at the time he entered the phone booth he was feeling woozy or drowsy. He stated that while in the phone booth he went to sleep. When he woke up about 11:30 he was in the phone booth and feeling so bad that he went over to the narcotics drawer to get some medicine to take, and while he was searching for the medicine the police came.

The police officers testified that when they entered the store in response to an alarm at approximately 11:48 P.M. the appellant was hiding between some bottle racks in the prescription booth in the drug store, and that the narcotics drawer had been pried open and was laying on the floor. Upon searching the appellant various tablets were found in the appellant's sock. The officer testified that State's Exhibits 2 and 4 were bottles which the officer

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removed from the appellant's sock. The testimony of the lab technician was that State's Exhibit No. 2 contained a derivative of opium, namely: morphine, and that State's Exhibit 4 contained a derivative of opium, namely: dilaudid. These exhibits were further identified by the manager as being in the narcotics drawer in the drug store prior to the alleged offense.

Further evidence disclosed that a ladder had been moved in the back room of the drug store so as to permit access to a loft on top of the trash room, and that there were cigarette butts on top of the trash room. There was also a door which at closing time was locked between the back room and the main part of the store, which door had an obvious alarm system attached thereto. Someone, following the closing of the store that evening, had knocked a hole in the wall which...