Stotts v. State
| Decision Date | 04 August 1971 |
| Docket Number | No. 1269S302,1269S302 |
| Citation | 271 N.E.2d 722,257 Ind. 8 |
| Parties | Larry STOTTS, Appellants, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Frank E. Spencer, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., J. Frank Hanley, Deputy Atty. Gen., for appellee.
This is an appeal by Larry Stotts from a conviction for safe burglary pursuant to IC 1971, 35--1--61--1 (Ind.Ann.Stat. § 10--702a (1956 Repl.)). Appellant was charged by indictment and pleaded not guilty. Trial was had by jury in Marion Criminal Court, and appellant was sentenced to the Indiana Reformatory for not less than five (5) nor more than ten (10) years.
Appellant does not assert that the evidence was insufficient to support the verdict of the jury. Appellant claims the statute attempting to define safe burglary contains two separate offenses and that he was not charged with safe burglary, as found by the jury, but with the second offense allegedly contained in the statute. Appellant next contends that the statute is unconstitutionally vague and contains an unconstitutionally arbitrary classification. His last contention is that the indictment was defective for failure to state the time at which the offense occurred, claiming this to be an essential element of the crime.
We cannot agree with appellant's first contention that the statute contains two distinct offenses. The statute in question IC 1971, 35--1--61--1, (Ind.Ann.Stat. § 10--702a (1956 Repl.)) is as follows:
'Any person who, with intent to commit a felony, breaks into and enters, either by day or night, any building, whether inhabited or not, and who unlawfully, maliciously or forcibly, with the aid and use of any instrument, device or explosive, blows, or attempts to blow, or who forces or attempts to force, an entrance into a safe, vault or depository box wherein is contained any money or thing of value, or whoever unlawfully takes, steals, carries, moves or attempts to unlawfully take, steal, carry or move any safe, vault or depository box wherein is contained any money or thing of value, shall upon conviction be imprisoned for an indeterminate period of not less than five (5) nor more than ten (10) years, * * *'
Appellant's alleged dichotomy would be as follows:
A. An intent to commit a felony;
B. A breaking into and entering;
C. By day or night;
D. A building, whether inhabited or not;
E. Then either:
1. Blowing or attempting to blow an entrance into a safe, vault or depository box; with any device or explosive, or,
2. Forcing or attempting to force an entrance into a safe, vault or depository box;
F. The safe, vault or depository box containing any money or thing of value.
Elements of the alleged second offense:
A. The taking, stealing, carrying, or moving, or attempting to take, steal, carry or move any safe, vault, or depository box,
B. Containing any money or thing of value.
Appellant contends that only the first offense amounts to 'safe burglary' and that the second offense in the statute is 'the taking, stealing, carrying, or moving of a safe.' He further contends that he was charged with the second offense making the verdict of guilty of safe burglary contrary to law. We cannot agree with appellant's construction of the statute. We feel the statute should be construed as follows:
I. Burglary Elements:
A. Breaking and entering
B. By day or night
C. Any building
D. Inhabited or not
E. With intent to commit a felony
And:
II. Elements Concerning the Safe:
Either:
A. Entrance or attempted entrance into safe by one of two methods:
1. Blowing or attempting to blow an entrance into a safe, vault or depository box containing any money or thing of value, or,
2. Forcing or attempting to force an entrance into a safe, vault, or depository box containing any money or thing of value
Or:
B. Carrying off the safe:
Unlawful taking, stealing, carrying, moving, or attempting to unlawfully take, steal, carry, or move any safe, vault or depository box containing any money or thing of value The classic burglary elements, must always be present, and in addition there must also be either an attempted entrance of some kind into a safe, or the unlawful taking of the safe. Thus, there are alternative methods of safe burglary, but there clearly is only one offense. There must first be the breaking and entering, etc. with intent to commit a felony and then either the attempt at entrance into the safe, or the unlawful taking of the safe. There is no offense of merely unlawfully taking, stealing, carrying, or moving a safe. The indictment itself read,
'* * * Robbie Bonds and Larry Stotts on or about the 14th day of December, A.D. 1967, * * * did then and there unlawfully, feloniously and burglariously break and enter into the building and structure of William McGraw, d/b/a Shindig Tavern, * * * with the intent to commit a felony therein, to wit: to unlawfully, feloniously and knowingly obtain and exert unauthorized control over property of the said William McGraw, d/b/a Shindig Tavern, to deprive the said William McGraw, d/b/a Shindig Tavern, permanently of the use and benefit of said property and did then and there unlawfully, maliciously, take, steal, carry and move a safe which was then and there situated in said building, and which safe contained Money in the sum of Five Hundred Dollars and 00/100 ($500.00), said money being the property of William McGraw, d/b/a Shindig Tavern, 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.'
From this we see that appellant was charged in the indictment in accordance with our construction of the statute. If there might be some small ambiguity in the jury's verdict, guilty of 'safe burglary,' we can assume he was found guilty of the offense charged in the indictment. Willoughby v. State (1966), 247 Ind. 210, 214 N.E.2d 169; Switzer v. State (1937), 211 Ind. 690, 8 N.E.2d 690; Leinberger v. State (1933), 204 Ind. 311, 183 N.E. 798. Clearly this is an action which the legislature meant to be proscribed by the statute. A reasonable construction should be given to the statute in order to effectuate that intent. There is only one offense embodied within the statute, and appellant was charged and convicted of that offense. The verdict was not contrary to law.
Apellant's next contention of error is that the statute in question is unconstitutionally vague and creates a classification which is completely arbitrary and unreasonable. Appellant asserts several grounds for his claim, which pertain to both the vagueness issue and the alleged arbitrary classification. He first claims that ownership of the safe and ownership of the money are not elements of the offense. However, the statute requires a felonious intent and an unlawful taking which clearly indicate the owner must be other than the accused. Appellant contends location of the safe prior to the action of the accused is not an element, and there is no requirement that the taking be before, during, or after the entry. However, the statute indicates the entry into or carrying off of the safe must be in conjunction with the breaking and entering; that alone is sufficiently definite. Appellant lastly contends knowledge that there is money in the safe is not an element. We agree, but the accused must have a felonious intent and there must, in fact, be money or valuables in the safe. This does not seem an arbitrary classification.
A penal statute is sufficiently certain if the offense is defined so that a person of ordinary intelligence can perceive the wrong intended to be prohibited. Smith v. State (1917), 186 Ind. 252, 115 N.E. 943.
Roth v. United States (1957), 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498.
We think that anyone of ordinary intelligence, after...
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...as long as the statute fairly indicates to a reasonable man [ ] what actions are prohibited.” Id. (citing Stotts v. State, 257 Ind. 8, 271 N.E.2d 722, 726 (1971) ; and Roth, 354 U.S. at 491, 77 S.Ct. 1304 ) (emphasis added). By reading in a reasonable person standard, this Court upheld the ......
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