Stokes v. State, 29032
| Decision Date | 11 May 1954 |
| Docket Number | No. 29032,29032 |
| Citation | 233 Ind. 300,119 N.E.2d 424 |
| Parties | STOKES v. STATE. |
| Court | Indiana Supreme Court |
Kiplinger & Kiplinger, Rushville, for appellant.
Edwin K. Steers, Atty. Gen., Carl Humble, Deputy Atty. Gen., for appellee.
Appellant was charged by affidavit with the crime of second degree burglary under the acts of 1941, ch. 148, § 4(b), p. 447, being § 10-701, Burns' 1942 Replacement, tried by jury, found guilty as charged, and sentenced to the Indiana State Prison for a term of 2 to 5 years, and disfranchised for a period of 3 years.
Errors assigned are as follows:
1. The court erred in overruling appellant's motion to quash the affidavit.
2. The court erred in refusing to give to the jury appellant's tendered instructions numbered 1 to 16, both inclusive.
3. The court erred in giving to the jury of its own motion, its instructions numbered 4, 7, 11, 16, 20 and 26, and each of them, separately and severally.
4. The court erred in overruling appellant's motion for a new trial.
We shall consider these in the order of their importance as indicated by the record before us.
First: In his motion to quash the affidavit appellant asserts (1) that the facts stated therein do not constitute a public offense; and (2) that the affidavit does not state the offense charged with sufficient certainty.
The affidavit, omitting formal parts, is as follows:
'Price Cox being duly sworn on his oath says:
'That on or about the 16th day of June, 1948, at Rush County, Indiana, Frank D. Stokes, alias Frank D. Coleman, did then and there unlawfully, feloniously and burglariously break and enter into The Moose Lodge building of John McDaniels, Leslie Craven and Bernard Joyce, as Trustees of Loyal Order of The Moore, Rushville Lodge Number 1556, then and there situate, and not then and there a dwelling house or place of human habitation, with the intent to commit a felony therein towit: then and there unlawfully, feloniously and burglariously to take, steal and carry away the goods, chattels and personal property of Donald F. Woods, as Steward of the House Committee of the Social Club of Loyal Order of The Moose, Rushville Lodge Number 1556, then and there being contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana.'
Subsection (b) of § 10-701, Burns' 1942 Replacement, supra, provides, inter alia, '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, * * *.'
Appellant contends (1) that the affidavit does not sufficiently set forth either the ownership, occupancy or right to possession of the building broken into and entered, or (2) that the ownership of the personal property which was the subject of the larceny was not sufficiently alleged because the affidavit states 'that the personal property was that of Donald F. Woods, as Steward of the House Committee of the Social Club of Loyal Order of the Moose, Rushville Lodge Number 1556;' and (3) that the subject of the larceny is not specifically set forth and described in the affidavit.
An affidavit or indictment under this section, § 10-701(b), supra, may allege the ownership of the property to be in the owner or in a tenant in possession. McCrillis v. State, 1879, 69 Ind. 159; Kennedy v. State, 1882, 81 Ind. 379, 381; Radley v. State, 1910, 174 Ind. 645, 648, 92 N.E. 541. An allegation that appellant did 'break and enter into The Moose Lodge building of John McDaniels, Leslie Craven and Bernard Joyce, as Trustees of Loyal Order of the Moose, Rushville Lodge Number 1556' is sufficient to allege ownership of such building in such persons as trustees. This is sufficient as an allegation of ownership.
Donald F. Woods in his position as Steward of the House Committee could own or be in possession of goods, chattels and personal property, and an allegation that the personal property was that of Donald F. Woods, as Steward, was sufficient as against a motion to quash.
It is not necessary in an affidavit for second degree burglary to describe the goods intended to be stolen. Suter v. State, 1949, 227 Ind. 648, 653, 88 N.E.2d 386.
The affidavit herein was sufficient to meet all the requirements of § 10-701(b), supra. Ewing v. State, 1921, 190 Ind. 565, 131 N.E. 43.
The trial court did not err in overruling appellant's motion to quash.
Second: Appellant contends that the evidence is insufficient to sustain the verdict of the jury in that (1) the state failed to prove that John McDaniels, Leslie Craven and Bernard Joyce 'as trustees' were the owners of, or entitled to, or had possession of the building described in the affidavit; (2) that there is no evidence showing that Donald F. Woods, as Steward of the House Committee, was the owner of or entitled to possession of any personal property which could have been the subject of the burglary.
The affidavit states that the crime was committed on or about the 16th day of June, 1948. The record discloses that the lodge, at a regular meeting held on December 2, 1946, by resolution, authorized the trustees of the lodge to purchase 'the entire building in which the above mentioned Lodge [Rushville Lodge, No. 1556 Loyal Order of Moose] now occupies the top floor'; that said building was purchased on January 11, 1947, and a report of the purchase made to the lodge on January 13, 1947. The record further shows that John McDaniels, Leslie Craven and Bernard Joyce were, on June 16, 1948, the duly elected and acting trustees of said lodge. This is sufficient to establish that such persons, as trustees, held the legal title to and had possession of the lodge building on the date the alleged crime was committed. 1 R.S.1852, ch. 101, § 11, p. 458, being § 25-1513, Burns' 1948 Replacement.
A careful examination of the record discloses that there is sufficient evidence from which the jury might reasonably have inferred that the personal property which was the subject of the burglary was in the custodial possession of Donald F. Woods, as Steward of the ...
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