Summers v. State
Decision Date | 09 August 1972 |
Docket Number | No. 372A147,372A147 |
Citation | 153 Ind.App. 22,285 N.E.2d 673 |
Parties | John SUMMERS, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Appellate Court |
Frederick F. McClellan, Muncie, for appellant.
Theo. L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.
Defendant-appellant (Summers) was charged by affidavit with Second Degree Burglary. After a jury trial he was found guilty of Entering to Commit a Felony and sentenced to the Indiana State Prison for not less than one nor more than five years.
Summers filed a Motion to Correct Errors contending: (1) That there was insufficient evidence to prove ownership of the building involved; (2) That the court erred in permitting the testimony of a witness regarding events prior to the date of the alleged offense and (3) That there was a fatal variance in the testimony concerning the serial number of one of the television sets alleged to have been taken in the burglary.
The evidence most favorable to the State showed that Summers, together with one Daryle Thornburg and others, met on the day of the offense, December 12, 1969, at a tavern in Muncie, Indiana. They agreed they were going to 'break in a place and try to get some money.' They then proceeded to Lynn, Indiana in Summers' truck and stopped at an appliance store described by State's witness, Morris, as belonging to him. Thornburg punched out a window glass at the front of the store with his elbow and Summers and the others removed several television sets from the store and carried them to the truck which had been parked around the corner. The TV sets and other stolen items were then transported to a farm in the vicinity of Modoc. Summers assisted the others in unloading the stolen items and all returned to their homes in Muncie. Plans were made at a meeting the next day to sell one of the stolen sets and Summers, Thornburg and another man went back to the farm, picked up a TV set which they took to Jonesboro where they sold it to Mrs. Robert Boothy for $225.00. Defendant received $50.00 from the proceeds of the sale.
Appellant first contends that the jury's verdict is contrary to law in that the State did not introduce sufficient evidence to show that the building in question was owned by one Eddie Morris, as charged in the affidavit. Morris took the stand and the following appears in the record:
'Q. And who is the owner of that building?
Mr. McClellan: Just a minute, your Honor, we object to that for the record would be the best evidence.
The Court: Objection overruled by the Court.
Mr. McClellan: Thank you, your Honor.
Prosecutor: Would you repeat your answer, please?
Witness: I own the building.
Q. And, as the owner of that building, who was the occupant of it on December the 12th, 1969?
A. I was.'
In addition Morris testified that he owned the merchandise in the building as a part of his furniture and appliance store.
Our courts have previously held that proof of ownership is not absolutely required in a burglary prosecution and as was said in Bradley v. State (1964), 244 Ind. 630, 195 N.E.2d 347:
(Emphasis added.)
It will be noted that the statute defining second degree burglary states nothing specifically as to ownership, it being merely provided:
'(b) Whoever breaks or enters into . . . any building or structure other than a dwelling-house or place of human habituation, with the intent to commit a felony . . .,' etc. Burns' § 10--701 (1956 Repl.), Acts 1941, ch. 148, § 4, p. 447.'
See also Jay v. State (1965), 246 Ind. 534, 206 N.E.2d 128 and Musick v. State (1972), Ind., 280 N.E.2d 602.
Appellant's first contention is not well taken, there being ample evidence to support the verdict of the jury, both in fact and in law.
Appellant next contends that there was error in permitting Mrs. Boothey to testify to events prior to December 12, 1969, the date of the offense. The record is as follows:
'Q. And did you have an occasion in December of 1969, to buy a color television set?
A. Yes, sir.
Q. Would you tell the Jury under what circumstances you bought that color television set?
Mr. McClellan: Your Honor, I think before we proceed any further, the time should be established when in December--
Q. You recall the approximate date in December when you bought the color television set?
A. No, sir.
Q. Alright. Now, you had had a fire, isn't this correct?
A. Yes, sir.
Q. When was the fire?
A. Just before school started that year.
Q. Pardon me?
A. Just before school started.
Q. And you don't recall when in December you bought the television set, is that correct?
A. No, I don't sir.
Q. O.K. Can you tell the Court and Jury from whom you bought the color television set from?
Mr. McClellan: If it please the Court, I have the same objection until it is established that this occurred after December the 12th, 1969, the date of this alleged offense.
Prosecutor: Again, your Honor--
Mr. McClellan: It won't be relevant. Prosecutor: (continuing) we will tie it up by our next witness.
The Court: How do you know this was December instead of November, or January, or June or July.
Witness: It was supposed to be our Christmas present.
The Court: How do you know it was 1969, instead of 1968, or '70?
Witness: Because it was the year we had our fire.
The Court: So you know it was December, and you know it was 1969?
Witness: I believe it was in December.
The Court: Alright. Now, the Court will overrule the objection, proceed with your direct examination.'
Summers' contention that the Court permitted the witness to testify to events prior to the offense is not well taken.
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