Thomas v. State, 767S39

• Decision Date: 26 August 1970
• Docket Number: No. 767S39,767S39
• Citation: 261 N.E.2d 224,254 Ind. 561
• Parties: Donald Owen THOMAS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 224

261 N.E.2d 224

254 Ind. 561

Donald Owen THOMAS, Appellant, v.STATE of Indiana, Appellee.

No. 767S39.

Supreme Court of Indiana.

Aug. 26, 1970.

Rehearing Denied Sept. 30, 1970.

Frank E. Spencer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., John J. Dillon, Former Atty. Gen., Murray West, Former Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal from the judgment of the Criminal Court of Marion County, Division No. 1, finding appellant guilty of Second Degree Burglary.The charge was brought by affidavit and tried before the court, the defendant having waived trial by jury.

Testimony at the trial indicates that Foster Powell owned a grocery in Marion County.On January 5, 1966, Foster Powell left his place of business, Powell's Market, about 10:00 p.m.Just after midnight, he was called to his store and found the back door broken and meat stacked up by the meat block, but nothing was missing.Officer Tim Martin of the Indianapolis Police Department saw defendant in the alley behind Powell's Market at 12:17 a.m. on January 6, 1966.Appellant'was just on the inside of the store running out the back door.'Officer Martin testified that another subject ran north in the alley with appellant but that he was not apprehended.Appellant was apprehended by Officer Martin and a subsequent search resulted in finding two rolls of pennies and a flashlight in appellant's pocket.Officer Martin proceeded to examine the back door of Powell's Market and found that two 2 4's that were on the inside of the door had been sawed through and that five boxes of meat had been stacked up and placed just inside the rear door of the store.

Appellant argues the fact that the door had been sawed open some time between 10:00 p.m., the time Powell left, and 12:17 a.m., the time when Officer Martin arrived and saw the defendant inside the back door, does not establish that the defendant was the one who broke open the door, but that in the absence of any other evidence it only establishes that defendant had entered the store.

It is our duty on appeal to review the evidence most favorable to the appellee to determine whether there was substantial evidence to sustain the finding of the lower court.Walker v. State(1968), 250 Ind. 649, 238 N.E.2d 466.We hold that the evidence in this case is indeed sufficient for the lower court to find that appellant was the one who broke open the door and stacked the...