Wathen v. State

201 N.E.2d 692, 246 Ind. 245, 1964 Ind. LEXIS 292

• Court: Indiana Supreme Court
• Decided: October 26, 1964
• Docket: 30,585
• Status: Published

Opinions

Arterburn, J.

The appellant was charged and convicted by a jury of first degree burglary and was sentenced accordingly. He filed a motion for a new trial, which was overruled. This appeal is based upon the points that the verdict of the jury was not sustained by sufficient evidence and was contrary to law. The contention is specifically made by the appellant that there is no evidence or testimony that there was a “breaking in or entering” and there is no testimony “that anyone saw the defendant, Francis Wathen, break into or enter the premises.” This requires a resumé of the evidence and the inferences to be drawn therefrom.

We start out with the recognized principle of appellate review that only the evidence most favorable to sustaining the conviction will be considered.

The evidence reveals that an officer testified that on the day of the alleged crime, in response to a burglar alarm, he proceeded to 4701 Kessler Boulevard, East Drive, Indianapolis, Indiana. When he arrived at that place he saw the appellant on the porch of the house coming away from the door. The officer asked the appellant to stop hut the appellant continued walking. When the officer finally stopped the appellant, he asked him to identify himself and the appellant hit the officer in the jaw. A struggle ensued, during which the appellant attempted to seize the officer’s gun. The officer further testified that a pane of glass above the door knob was broken out of the door of the house and the door was open and unlocked. When the appellant was searched at the time of his arrest, a bottle of Scotch, two watches, about eight dollars in change, one silver dollar, two sets of keys and two rings were taken from his person. The owner of the house testified that at the time he was on a fishing trip in Wisconsin and that when he left, all doors were locked and no glass was broken. He identified the articles found on the appellant as belonging to him and left in the house. He further stated he did not know the appellant and never gave him any permission to enter the house. The owner’s wife corroborated her husband’s testimony. When an officer asked the appellant why he struck the other officer, the appellant answered: “ . . . Sergeant Haine, you have known me for sixteen years as a burglar, and I got excited and didn’t want to be caught.” From these circumstantial facts we think any reasonable person would come to the conclusion that the appellant was guilty of breaking into this residence and burglarizing the place. Convictions may rest entirely upon circumstantial evidence such as we have here, including the unexplained, exclusive possession of recently stolen property. Raymer v. State (1964), 244 Ind. 644, 195 N. E. 2d 350; Schweigel v. State (1964), 245 Ind. 6, 195 N. E. 2d 848.

The situation here is very similar to the facts in the cases above, where police officers discovered the defendants on the property in possession of goods taken from a building on the property, which building revealed it had recently been broken into. See also: Bradley v. State (1964), 244 Ind. 630,195 N. E. 2d 347.

We have the further fact here that the appellant attempted to escape and resisted the arresting officer. Martin v. State (1957), 236 Ind. 524, 141 N. E. 2d 107, cert. denied, 354 U. S. 927, 77 S. Ct. 1387, 1 L. Ed. 2d 1439.

What we have said here applies also to appellant’s contention that a motion for a directed verdict should have been sustained.

The judgment of the trial court is affirmed.

Achor, C. J., and Myers and Landis, JJ., concur.

Jackson, J., concurs in result.