Thomas v. State

• Citation: 23 Ind.Dec. 242,255 Ind. 131,263 N.E.2d 158
• Decision Date: 22 October 1970
• Docket Number: No. 1269S290,1269S290
• Parties: Marion THOMAS, Appellant, v. STATE of Indiana Appellee.
• Court: Indiana Supreme Court

Page 158

263 N.E.2d 158

255 Ind. 131

Marion THOMAS, Appellant, v. STATE of Indiana Appellee.

No. 1269S290.

Supreme Court of Indiana.

Oct. 22, 1970.

Rehearing Denied Dec. 15, 1970.

Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Judge.

Appellant was charged by affidavit with second degree burglary in violation of Acts 1941, ch. 148, § 4, Burns Ind.Stat.Ann. § 10--701, in Marion County Criminal Court Division Two. In a trial without jury appellant was convicted of entering to commit a felony, Acts 1941, ch. 148, § 5, Burns Ind.Stat.Ann. § 10--704, which reads as follows:

'10--704. Entering to commit a felony--Penalty.--Whoever enters any * * * business-house * * * shop, office, storehouse, warehouse * * * or any other erection or inclosure, with the intent to commit a felony therein, shall, on conviction, be imprisoned for not less than one (1) year nor more than ten (10) years, and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.'

Appellant's first contention is that there was insufficient evidence to sustain the trial court finding.

In reviewing the allegation of insufficient evidence this Court will not weigh the evidence nor resolve questions of credibility of witnesses, but will look to that evidence and the reasonable inferences therefrom which support the finding of the trial court. Asher v. State (1969), Ind., 244 N.E.2d 89. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Smith v. State (1970), Ind., 260 N.E.2d 558.

Officer Wyatt of the Indianapolis Police Department testified that on June 8, 1969, he was on patrol duty headed south on Bright Street at Indiana Avenue. He noticed that a plywood board, used to cover up one of the broken windows of Newbauer's Department Store, had been pried loose and was leaning against the building. This board had not been in that position earlier in the evening. A man was standing outside the building and when Wyatt went over to investigate he walked away. Wyatt called him back and then he heard voices inside the building. Wyatt testified three different times that he found appellant inside the building with two other men. Wyatt identified Exhibits 1 and 2 as a man's shirt and a woman's dress that were on the ground outside the window.

Officer Armor of the Indianapolis Police Department testified that he was with Wyatt when the above events occurred and their attention had been attracted by the board leaning against the building because it had not been there earlier. Armor could not say positively that appellant was one of the men inside the building. Armor said Exs. 1 and 2 were laying over the open window sill.

Jack Newbauer testified that a few days prior to June 8, all the windows in the store had been smashed and covered with plywood boards. Newbauer went to the store on June 9, and found some articles missing. He identified Exs. 1 and 2 as articles from the store by the private sales ticket in his wife's handwriting. Jack Newbauer and his wife owned the building, she owned the store and he managed it. No permission was given to appellant to enter the store or take anything from the store. We believe the above evidence was sufficient to sustain a finding that appellant entered Newbauer's Department Store with the intent to steal some of the articles therein.

Appellant's second contention is that there was a fatal variance between the pleading and the proof. The affidavit reads as follows:

'BE IT REMEMBERED, That, on this day before me Noble R. Pearcy, Prosecuting Attorney of the nineteenth Judicial Circuit, personally came William Bryant, who, being duly sworn, upon his oath, says that James Hurlo Pierson, Carl Edward Stevenson, Jr., Marion Lieutenant Thomas and Lonnis Oscar Smith, alias John Harris on or about the 8th day of June, A.D. 1969, at and the County of Marion in the State of Indiana, did then and unlawfully, feloniously and burglariously break and enter into the building and structure of Jack Newbauer, doing business as Newbauer's Department Store, then and there situate at 770 Indiana Avenue City of Indianapolis, County of Marion, State of Indiana...