Suter v. State

Decision Date07 November 1949
Docket Number28548.
PartiesSUTER v. STATE.
CourtIndiana Supreme Court

Wilbur F. Dassel, Evansville, for appellant.

J. Emmett McManamon, Atty. Gen., Chas, F. O'Connor, Depty. Atty Gen., Merl M. Wall, Depty. Atty. Gen., for appellee.

GILKISON, Chief Justice.

Appellant was charged in the trial court, by affidavit, which omitting caption, signature, verification, approval and endorsements is as follows:

'Marvin Huff being duly sworn upon his oath says that Robert Allen Suter on or about the 1st day of May, A.D., 1948, at said County and State as affiant verily believes did then and there unlawfully, feloniously and burglariously break and enter into the dwelling house of Neal Sauer, 1325 E. Gum Street in the City of Evansville, in which the said Neal Sauer then lived with the intent to unlawfully take, steal and carry away the goods, chattels and personal property of the said Neal Sauer,

'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.'

The date in the affidavit was afterward changed to March 29, 1948, on motion of the state and without objection.

Appellant moved to quash the affidavit for the reasons, (1) The facts stated in the affidavit do not constitute a public offense. (2) The affidavit does not state the offense with sufficient certainty. This motion was overruled, and error is assigned thereon.

Appellant filed and presented his verified motion to suppress evidence obtained by an alleged unlawful search of appellant's home, which motion was sustained by the court.

After plea of not guilty, the cause was tried by jury, resulting in a finding of guilty as charged.

Appellant's motion for new trial, setting forth one hundred fifty-four causes, was overruled, and judgment was rendered on the verdict from which this appeal is taken. Error is assigned on the ruling on the motion for new trial.

The statute defining the offense of first-degree burglary and providing the penalty therefor is follows: 'Whoever breaks and enters into any dwelling-house or other place of human habitation with the intent to commit any felony therein, or to do any act of violence or injury to any human being, shall be guilty of burglary in the first degree, and on conviction thereof of shall be imprisoned not less than ten years nor more than twenty years and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.' Burns' 1942 Repl. § 10-701(a).

We quite agree with appellant that the affidavit must charge an unlawful breaking and entry with intent unlawfully to take, steal and carry away the goods, chattels and personal property of the owner or occupant of the property described in the affidavit. We think the affidavit in question complies with this requirement, concisely and without surplusage. In a charge of first-degree burglary with intent to commit a larceny, the crime consists in breaking and entering into the dwelling house or other place of human habitation with intent to commit any felony therein, or do any act of violence or injury to any human being. The crime is complete without the actual commission of the felony intended, and it is not necessary to state the kind or value of the goods intended to be stolen. Hunter v. State, 1867, 29 Ind. 80, 82; Short v. State, 1878, 63 Ind. 376, 379; Farley v. State, 1890, 127 Ind. 419, 420, 26 N.E. 898; Barnhart v. State, 1899, 154 Ind. 177, 178, 56 N.E. 212. Pacelli v. State, 1929, 201 Ind. 455, 458, 166 N.E. 649. See Anno. 113 A.L.R. 1270.

There was no error in overruling the motion to quash the affidavit.

Appellant objected to much of the evidence introduced in the case against him by the state. It would extend this opinion greatly to attempt to determine each objection properly presented, and the appeal may be determined without the necessity of doing so. Appellant objected to the introduction in evidence of state's Exhibit No. 1 which was the typewritten purported confession by appellant. This objection was overruled and the exhibit was admitted in evidence. Twenty-one reasons are assigned for this objection, among which stated in our own words, we find the following: That it was given under inducement and under the influence of fear produced by threats and intimidation and after the police held the defendant in custody without warrant for a period of more than two days in a small cell, or room under almost constant questioning and without necessary food, rest or sleep. That during the time appellant was so held by the police, they denied appellant's request to consult with his father, wife and with his counsel, and refused to permit his counsel to consult with him.

The court heard evidence on this and other objections in the absence of the jury. The undisputed evidence so heard shows that appellant and his wife were driving on the streets of Evansville, and were stopped by Chief of Detectives, George Hansch and several other police officers. They asked his name, searched his car, and told appellant to get in his car and go down to the police station, which he did--the police following him. The police station is about four miles from where they stopped him. They took him to a little back room leaving his wife outside somewhere and he did not see her again. They made him take everything out of his pockets and then started questioning and accusing him. Chief Hansch said he was going to lock up appellant's wife. More than once Chief Hansch said to appellant: 'What are you trying to do, take your wife to the penitentiary with you? That is exactly what you are going to do.' 'How many jobs did she pull with you?' They put handcuffs on appellant and took him out to his house and searched it several times on Saturday night, Sunday, Sunday night and Monday. Appellant asked for his attorney, Jimmie Lopp, Saturday night as soon as he was brought to headquarters. Often he asked the police to call his father or Jimmie Lopp, his attorney, and he frequently asked the police to permit him to call his attorney and his father. The police always answered him 'later on' or 'you will have to see Chief Hansch'. But they never called either his father or his lawyer nor permitted appellant to do so. Late Saturday night they took him upstairs and locked him in a cell of solid steel, furnished with a cot and commode. There were no bed covers, no lights, no drinking water. Policemen came in and questioned him at intervals of fifteen to thirty minutes continuously during the night. They frequently told him to come clean and confess or they would charge his wife with crime. Each time they came they made him get up and stand at the bars and talk. Sunday morning they took appellant downstairs to a little room 3 ft. by 8 ft. beside Chief Hansch's. There were two or three officers in the room. They asked him several questions but he didn't answer and they again threatened to bring charges against his wife. Another officer said if he didn't answer these questions he'd get it out of him one way or another--then this officer took a blackjack out of his pocket and hit a filing cabinet with it making a loud noise.

The police took appellant back to see Chief Hansch and told him if 'he'd come clean' they would turn his wife loose. They continued asking him questions--he had no dinner Sunday. They did not let him sleep or eat on Sunday or Sunday night. Monday morning they questioned him a while. They let him see his wife a few minutes and they told her to tell him 'he'd better get this straightened out or they would put charges against her too.'

Appellant had nothing to eat on Monday morning, and he again asked the policeman Huff to let him call his lawyer or his father and Huff told him that when they got 'everything straightened out they'd get hold of them' for him. They continued questioning him about every fifteen minutes.

Policeman Huff promised if appellant would sign the statement they had written up they would turn his wife loose.

On Sunday morning, August 8, appellant's father was refused permission to see appellant or his wife. Appellant's father and attorney, James Lopp, went to the police station about eight o'clock Monday morning and asked to see appellant. Policeman Huff informed the attorney that they 'were working on him and they'd not completed their statements' and refused the attorney's request. Attorney Lopp then insisted that he be allowed to see appellant, and the police refused. The police told the attorney they were holding the defendant without warrant for investigation. They refused to permit this attorney to see appellant's wife who was also locked up at the police station. Police told the attorney to return later that morning and he could see them. The attorney returned between 10:30 and 11:00 o'clock that morning and again asked to see appellant and was informed by the policeman Huff they had not completed their work, and he could not see appellant. The attorney then threatened to bring a habeas corpus action. The attorney begged the police to let appellant's father see him. The police then required appellant's father and his attorney to promise that they 'would not advise him' and that they would merely say 'hello' to him. The police then allowed appellant's father and lawyer to stand at the door of the small room next to the detective's office 'merely for the purpose of viewing' appellant.

The attorney then noted the appellant 'looked terrible, haggard, and from his facial expression he was just worn out physically.'

No one from police headquarters ever called attorney Lopp and advised him that appellant and his wife wanted to see him. He learned of that desire from appellant's father only.


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