Kissinger v. State

263 N.E.2d 646, 255 Ind. 283, 1970 Ind. LEXIS 480

• Court: Indiana Supreme Court
• Decided: November 20, 1970
• Docket: 369S65
• Status: Published

Opinions

Givan, J.

Appellant was charged with the crime of safe burglary as defined in Burns Ind. Stat., 1956 Repl., § 10-702a. Trial by jury resulted in a verdict of guilty, upon which the appellant was sentenced to the Indiana State Prison for not less than five nor more than ten years.

The evidence as shown by the record before us discloses the following:

On December 24, 1965, Melvin Wise, Manager of the Carbob Restaurant, 5959 East 38th Street, Indianapolis, Indiana, placed $1,715 in a lock box which he placed in the company’s safe, which was in turn locked. The restaurant was not open for business on Christmas Day. However, Robert Lambertson, the owner of the restaurant, checked the building on the evening of the 25th and found everything in order. About 5:00 A.M. on the morning of December 26, Paul Harmon, an Indianapolis Police Officer, was parked in his patrol car near the restaurant. He heard a door slam in the restaurant. As he slowly approached the restaurant in his car he observed the appellant and another man run from the restaurant toward an open field. Officer Harmon continued to drive to a nearby parking lot bordering the field and waited for the two men to re-appear. Appellant ran almost directly into Officer Harmon and was immediately apprehended. The officer testified that the appellant was wearing the same type of clothing a§ one of the men he saw running from the building, and that the appellant was out of breath when apprehended. The other person seen running from the building was also apprehended by officers in a nearby creek bed where a sledge hammer, crowbar, flashlight, and black leather gloves were found. After the apprehension of appellant, Officer Harmon returned to the building, where he discovered the outside door had been broken and the safe had been opened by force.

Appellant first alleges error in that the affidavit charged the appellant as Leo Kissinger alias Ralph McGarvin; however, there was no proof by the State that the appellant was ever known by the name of Ralph McGarvin. Appellant cites no authority for his position that such a failure on the part of the State would be reversible error. No question has been raised that the appellant was not in fact known as Leo Kissinger nor is there any allegation or indication in the record that he was surprised or prevented in any way from properly defending himself by reason of the alleged alias. In the absence of any allegation of harm, we fail to see any materiality as to whether the State did or did not prove an alleged alias. By the failure to cite authority the appellant has waived this proposition. Short v. State (1968), 250 Ind. 459, 237 N. E. 2d 258, 14 Ind. Dec. 405.

Appellant next alleges error in that he claims there is insufficient evidence to sustain the verdict. As above pointed out, there was ample evidence that the building had been forcefully entered and the safe broken into. The testimony of Officer Harmon that he personally observed appellant run from the premises, that he apprehended him shortly thereafter while appellant was still running, was evidence which the jury could consider in determining appellant’s guilt. State v. Torphy (1940), 217 Ind. 383, 28 N. E. 2d 70. These facts, together with the evidence that burglary tools were recovered near the scene and near a place where defendant’s alleged accomplice was apprehended, constitute ample evidence to sustain the verdict of the jury that the defendant was in fact guilty as charged. Ruggirello v. State (1969), 252 Ind. 144, 246 N. E. 2d 481, 17 Ind. Dec. 273.

The trial court is, therefore, affirmed.

Huntér, C.J., Arterburn and DeBruler, JJ., concur; Jackson, J., dissents with opinion.