Young v. State, 169
| Decision Date | 22 July 1970 |
| Docket Number | No. 169,169 |
| Parties | Marvin Leon YOUNG, Appellant, v. STATE of Indiana, Appellee. S 13. |
| Court | Indiana Supreme Court |
Malcolm G. Montgomery, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen. of Indiana, Murray West, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from the judgment of the Vanderburgh Circuit Court wherein the appellant was convicted of the crime of second degree burglary.
The affidavit charging the appellant with the crime was filed on April 5, 1968, and reads in pertinent part as follows:
'HENDRICKS G. LUPTON being duly sworn upon his oath says that MARVIN LEON YOUNG on or about the 31st day of March A.D., 1968, at said County and State as affiant verily believes did then and there unlawfully, feloniously and burglariously break and enter into the building and structure owned by FIRST EVANSVILLE REALTY CORP. and occupied by CANTEEN SERVICE CO., INC., a corporation, then and there situate at 2400 First Avenue in the City of Evansville, County of Vanderburgh, State of Indiana, which said building and structure was not a place of human habitation, with the intent to commit a felony therein, to-wit: unlawfully, feloniously and knowingly obtain and exert unauthorized control over the property of CANTEEN SERVICE CO., INC., a corporation, intending to deprive said owner permanently of the use and benefit of said property.
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.'
On April 10, 1968, the appellant, in person and by counsel, waived arraignment, entered a plea of not guilty, and requested a trial by jury. On September 3, 1968, the appellant changed his plea to not guilty and not guilty by reason of insanity.
Trial by jury commenced on September 9, 1968, and on September 10, 1968, the jury returned a verdict finding the appellant guilty of burglary as charged in the affidavit. On September 16, 1968, the trial court sentenced the appellant to the Indiana State Prison for a term of not more than two (2) nor more than five (5) years.
The appellant filed his motion for a new trial on October 9, 1968. This motion was overruled by the trial court on October 21, 1968. On appeal the appellant's sole assignment of error is that the trial court erred in overruling the appellant's motion for a new trial.
From the evidence adduced at trial it appears that on or about March 31, 1968, police officers Charles Franklin and Jerry Welch of the Evansville Police Department received a radio dispatch notifying them that a burglary alarm sounded at Canteen Service Company, Inc., which is located on First Avenue in Evansville. Officer Franklin stated that when he arrived he heard a loud crash, observed a flashlight being flashed beneath a door of the building, and noticed that someone was apparently trying to pry open an overhead door. The officer testified that after the door had been pried open slightly he saw the appellant attempting to crawl out from under the door. Officer Franklin ordered the appellant to stop, and told him that he was under arrest. The appellant took a few steps, and then laid face down on the floor. Officer Franklin said that he then advised the appellant of his constitutional rights and placed him in handcuffs. While handcuffing the appellant, Franklin removed a four inch throwing knife and scabbard from the lining of the appellant's sport coat. The appellant was then placed in the patrol car, and again advised of his constitutional rights.
Hendricks Lupton, a detective with the Evansville Police Department, testified that he spoke with the appellant while the appellant was under arrest and in the patrol. car. The witness stated that the appellant told him that while in the building he got some cigarette cartons to take, and tried to get out of the building when he heard the police coming. The appellant led the police to these cartons, and they were admitted into evidence as State's Exhibit No. 1.
Appellant under specification 8 of his motion for new trial alleged the court erred in refusing to give his tendered instruction No. 4. He does not discuss this assigned error or support his contention with any citations in support of his theory and therefore has waived consideration of the alleged error with respect to that numbered instruction. Bewley v. State (1966), 247 Ind. 652, 220 N.E.2d 612; Greenwalt v. State (1965), 246 Ind. 608, 209 N.E.2d 254, 210 N.E.2d 373.
The first argument presented to this Court by the appellant is that the trial court erred in refusing to give the appellant's tendered instruction number five (5) to the jury. Appellant's tendered instruction number five states that the offense with which the appellant is charged in the affidavit also includes the offense of third degree burglary. The tendered instruction then includes the portion of the statute defining third degree burglary. The appellant argues that third degree burglary is a lesser and included offense in second degree burglary. He contends that it was therefore error to refuse to give tendered instruction number five (5).
The statute under which the appellant was charged in Ind.Ann.Stat. § 10--701(b) (1956 Repl.), which reads as follows:
'(b) Whoever breaks and enters into any boat, wharf-boat, or other water-craft, interurban-car street-car, railroad-car, automobile, airplane, or other aircraft, or any building or structure other than a dwelling-house or place of human habitation, with the intent to commit a felony therein, shall be guilty of burglary in the second degree, and upon conviction shall be imprisoned not less than two (2) years nor more than five (5) years and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period: Provided, however, That the court shall have power to suspend prison sentence and place the defendant on probation in accordance with existing law.'
The offense of third degree burglary is defined by Ind.Ann.Stat. § 10--701(c) (1956 Repl.), and reads as follows:
'Whoever enters any dwelling-house or other place of human habitation, or any boat, wharf-boat, or other watercraft, interurban-car, street-car, railroad-car, automobile, airplane, or other aircraft, or any building or structure, with the intent to commit a misdemeanor therein; or whoever enters or attempts to enter any enclosed or unenclosed lot, parcel, or tract of land, with the intent to commit a felony thereon, or with intent to sever from the soil any crop or part of a crop, cultivated plant or plants, fruits, or any products growing thereon, or to sever or remove any building, gate, fence, railing, or other structure, shall be guilty of burglary in the third degree, and on conviction shall be fined in any sum not exceeding five hundred dollars ($500), and may, at the discretion of the court or jury, be imprisoned in the Indiana State Farm for any determinate period not exceeding one (1) year: Provided, That the court shall have power to suspend sentence and place the defendant on probation in accordance with existing law.'
In Watford v. State (1957), 237 Ind. 10, 143 N.E.2d 405, this Court held that the offense of third degree burglary is not an included offense in the offense of first degree burglary. In Watford this Court said: Id. at 237 Ind. 14, 15, at 143 N.E.2d 406.
In the case at bar, the affidavit charges the appellant with breaking and entering with '* * * the intent to commit a felony therein, to-wit: unlawfully, feloniously and knowingly obtain and exert unauthorized control over the property of Canteen Service Co., Inc., a corporation, intending to deprive said owner permanently of the use and benefit of said property.' (Emphasis supplied). Thus, the felony which the affidavit in the case at bar charges that the appellant intended to commit when he broke into the building is theft, as defined by Ind.Ann.Stat. § 10--3030 (1969 Repl.).
In Indiana a 'felony' is defined by statute, Ind.Ann.Stat. § 9--101 (1956 Repl.), as being any crime or public offense '* * * which may be punished with death or imprisonment in the state prison * * *.' The penalty for theft under § 10--3030, supra, is prescribed in Ind.Ann.Stat. § 10--3039(1) (1969 Supp.), which provides:
'10-3039. Penalties.--A person convicted of theft of property not from the person and of less than one hundred dollars ($100) in value shall, except as otherwise provided in this section, be fined not more than five hundred dollars ($500) or imprisoned for not more than one (1) year, or both, or such person may be imprisoned in the state prison not less than...
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