Summary
In Goldstine v. State (1952), 230 Ind. 343, 351, 103 N.E.2d 438, we recognized that a charge of unlawfully, feloniously, and burglariously entering a grocery store, with intent to take, steal, and carry away personal property, included the offense of entering to commit a felony under § 10-704, supra, and held that third degree burglary was not an included offense in entering to commit the felony above described and charged in Count 1 of the affidavit in that case under § 10-704, supra.
Summary of this case from Watford v. StateOpinion
No. 28,833.
Filed February 7, 1952.
1. ROBBERY — Automobile Banditry — Indictment and Affidavit — Requisites and Sufficiency — Elements of Automobile Banditry Necessary. — Where in a prosecution for automobile banditry, based on the crime of robbery, there was a failure to allege all of the necessary elements of said crime, in that the count did not allege that the property was taken from the person or possession, or in the presence, of the person robbed; neither were the elements of larceny alleged; the motion to quash this count should have been sustained. Burns' 1942 Replacement, § 10-4710. p. 347.
2. ROBBERY — Robbery While Armed — Indictment and Affidavit — Requisites and Sufficiency — Elements of Robbery While Armed Necessary. — Where in a prosecution for robbery while armed with a deadly weapon, that count of the affidavit alleged that defendant did then and there unlawfully, feloniously commit and attempt to commit a crime, to-wit: robbery and that he was armed with a dangerous and deadly weapon, to-wit: a pistol contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana, said count failed to allege the necessary elements of the offense of robbery. Burns' 1942 Replacement, § 10-4709. p. 348.
3. ROBBERY — Robbery While Armed — Indictment and Affidavit — Requisites and Sufficiency — Allegation of Age Necessary. — Where in a prosecution for robbery while armed with a deadly weapon, that count of the affidavit failed to allege defendant was over the age of sixteen years, and the statute makes the allegation as to age a necessary element, such failure made the affidavit so uncertain that it was subject to a motion to quash. Burns' 1942 Replacement, § 10-4709. p. 348.
4. ROBBERY — Robbery While Armed — Indictment and Affidavit — Requisites and Sufficiency — Affidavit Must Be Sufficiently Certain To Advise of Offense Charged. — In a prosecution for robbery while armed the affidavit must be sufficiently certain so as to advise the defendant of the offense charged, and failure to so do renders the count of the affidavit subject to a motion to quash. Burns' 1942 Replacement, § 10-4709. p. 348.
5. ROBBERY — Robbery While Armed — Indictment and Affidavit — Requisites and Sufficiency — Insufficient To Sustain Verdict of Guilty. — Where in a prosecution for robbery while armed with a deadly weapon, the affidavit failed to allege the necessary elements of robbery, and none of the elements of grand larceny were alleged, there could not be a finding of guilty of the crime of grand larceny, and it was error to enter judgment for the crime of grand larceny. Burns' 1942 Replacement, § 10-4709. p. 349.
6. CRIMINAL LAW — Indictment and Affidavit — Offense Must Be Charged With Sufficient Certainty. — In a proceedings under criminal statute the affidavit must state the offense charged with sufficient certainty, and the general rule is that an offense stated in the substantial language of the statute is sufficient as against a motion to quash. p. 350.
7. ROBBERY — Burglary Tools — Possession of Burglary Tools — Indictment and Affidavit — Offense Must Be Charged With Sufficient Certainty. — Where in a prosecution for possession of burglary tools, the affidavit alleged that the defendant, who had previously been convicted of a felony, to-wit: robbery, did then and there unlawfully and feloniously have in his possession burglary tools and implements with the intent to commit the crime of burglary, the words "burglar tools or implements," as used herein, are of such a general character that they are not sufficiently certain in themselves to apprise the accused of the charge. Burns' 1942 Replacement, § 10-703. p. 350.
8. ROBBERY — Burglary Tools — Possession of Burglary Tools — Indictment and Affidavit — Offense Must Be Charged With Sufficient Certainty. — Where in a prosecution for possession of burglary tools, the affidavit alleged that the defendant had in his possession burglary tools and implements; such a material fact, stated in a defective manner and form, was not sufficiently certain, and therefore was subject to a motion to quash. Burns' 1942 Replacement, § 10-703. p. 350.
9. ROBBERY — Burglary Tools — Possession of Burglary Tools — Indictment and Affidavit — Offense Must Be Charged With Sufficient Certainty — Description of Tools Not Pleading Evidence. — Where in a prosecution for possession of burglary tools, the affidavit alleged that the defendant had in his possession burglary tools and implements; such a material fact, stated in a defective manner and form, was not sufficiently certain, and to describe the tools would not be pleading evidence, as the burglary tools, if not sufficiently described, could cause the accused to face the possibility of being twice placed in jeopardy. Burns' 1942 Replacement, § 10-703. p. 350.
10. ROBBERY — Burglary Tools — Possession of Burglary Tools — Indictment and Affidavit — Offense Must Be Charged With Sufficient Certainty. — Where in a prosecution for possession of burglary tools, the affidavit alleged that the defendant had in his possession burglary tools and implements, a substantial description of the tools was necessary to advise appellant of the crime with which he was charged. Burns' 1942 Replacement, § 10-703. p. 350.
11. ROBBERY — Burglary Tools — Possession of Burglary Tools — Indictment and Affidavit — Offense Must Be Charged With Sufficient Certainty — Time, Place and Judgment of Previous Felony Conviction Must Be Alleged. — Where in a prosecution for possession of burglary tools, the affidavit alleged that the defendant had previously been convicted of a felony, had in his possession burglary tools and implements, the affidavit was not sufficiently certain in that it failed to alleged the time, place, and judgment of the alleged previous conviction of the felony, and such failure to allege the previous conviction with sufficient certainty renders the charge subject to a motion to quash. Burns' 1942 Replacement, § 10-703. p. 350.
12. ROBBERY — Entering To Commit Felony — Indictment and Affidavit — Third Degree Burglary Not Included in Charge of Entering To Commit Felony. — Where the defendant was charged under one count of an affidavit with entering to commit a felony, and was not charged with third degree burglary, and the record reveals that the jury was instructed concerning the offense of third degree burglary, that a verdict of guilty of the crime of third degree burglary was returned, that judgment was rendered, and that sentence followed, such was error as third degree burglary is not an included offense in entering to commit the felony charged. Burns' 1942 Replacement, §§ 10-701, 10-704. p. 351.
13. ROBBERY — Entering To Commit Felony — Indictment and Affidavit — Third Degree Burglary Not Included in Charge of Entering To Commit Felony — Conviction of Third Degree Burglary Is Contrary to Law. — Where the defendant was charged by affidavit with entering to commit a felony and was found guilty of third degree burglary, which crime was not charged in the affidavit, and not included in the charge, the verdict is contrary to law. p. 351.
14. ROBBERY — Second Degree Burglary — Indictment and Affidavit — Must Allege Ownership of Building or Structure. — Where in a prosecution for second degree burglary, the affidavit charged that the defendant did then and there unlawfully, feloniously, and burglariously break and enter into the grocery store of Roy Kellam; such was sufficient to allege ownership of the building or structure as required. Burns' 1942 Replacement, § 10-701. p. 352.
15. ROBBERY — Second Degree Burglary — Indictment and Affidavit — Must Allege Building or Structure Broken Into and Entered. — Where in a prosecution for second degree burglary, the affidavit charged that the defendant did then and there unlawfully, feloniously, and burglariously break and enter into the grocery store of Roy Kellam; such use of the term grocery store was sufficient in its common usage to mean building or structure where groceries are kept for sale. Burns' 1942 Replacement, § 10-701. p. 352.
16. CRIMINAL LAW — Indictment and Affidavit — Requisites and Sufficiency — Motion To Quash — Refusal Was Error — Error Not Harmless. — Where in a prosecution of a criminal case, the affidavit contained five counts, of which only one count was in proper form, the failure of the trial court to grant defendant's motion to quash the four improper counts of the affidavit and in allowing evidence to be introduced on the erroneous counts was not harmless error. p. 352.
17. CRIMINAL LAW — Appeal — Error — Burden on Appellee To Prove Appellant Not Harmed by Error. — Where in a criminal prosecution, the affidavit contained five counts, of which only one count was in proper form, the failure of the trial court to grant defendant's motion to quash the four counts not in proper form, and in allowing evidence to be introduced on the erroneous counts was error, and the burden was on the state to show by the record in the case that defendant was not prejudiced or harmed by the erroneous rulings and inadmissible evidence. p. 352.
From the Noble Circuit Court, Lowell L. Pefley, Special Judge.
Sam Goldstine was convicted of several offenses, and he appeals.
Reversed with instructions.
Robert A. Buhler, Chester A. Lincoln and James P. Murphy, all of Fort Wayne, for appellant.
J. Emmett McManamon, Attorney General; John Ready O'Connor, Norman J. Beatty and William T. McClain, Deputy Attorneys General, for appellee.
Appellant was charged by affidavit in five counts with (1) entering to commit a felony, under § 10-704, Burns' 1942 Replacement; (2) possession of burglar tools, under § 10-703, Burns' 1942 Replacement; (3) automobile banditry, under § 10-4710, Burns' 1942 Replacement; (4) robbery while armed, under § 10-4709, Burns' 1942 Replacement; and (5) second degree burglary, under § 10-701, Burns' 1942 Replacement. A motion to quash was filed to each count of the affidavit and was overruled. There was a plea of not guilty to each count, trial was by jury, a verdict of guilty was returned on each count of the affidavit, and a further verdict returned finding appellant guilty of grand larceny, and sentence on each followed.
Appellant first assigns as error the overruling of his motion to quash the affidavit and each of the five counts thereof.
The Attorney General in a forthright manner admitted error in count three. There was a failure to charge one of the necessary elements of the offense of automobile banditry, based on 1. the crime of robbery. This count did not allege that property was taken from the person or possession, or in the presence, of the person robbed, or that there was an attempt to take property from the person or possession, or in the presence, of the person robbed. Neither were the elements of larceny alleged. Pope v. State (1949), 227 Ind. 197, 84 N.E.2d 887. The motion to quash this count should have been sustained. It was error not to do so. Chizum v. State (1932), 203 Ind. 450, 453, 180 N.E. 674; Ramsey v. State (1932), 204 Ind. 212, 183 N.E. 648.
It is further admitted by the Attorney General that count four of the affidavit, charging robbery while armed, failed to allege the necessary elements of the 2. offense of robbery. The pertinent part of count four is as follows:
See "Robbery," Ewbank Criminal Law (2d Ed.), §§ 913, 914, pp. 703, 704, 705.
"David J. Milbourn first being duly sworn upon his oath says that on or about the 5th day of September, 1950 in the County of Noble, State of Indiana Sam Goldstein did then and there unlawfully, feloniously commit and attempt to commit a crime: to-wit: robbery and that he was armed with a dangerous and deadly weapon, to-wit: a pistol contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Indiana."
We agree with the admission of error.
This count is further defective, and subject to a motion to quash, in that it fails to allege that appellant was over the age of sixteen years. Section 10-4709, Burns' 1942 3, 4. Replacement, supra, provides: "Any person who being over sixteen [16] years of age, commits or attempts to commit. . . ." This section of the statute makes the allegation as to age a necessary element, and without it the affidavit is so uncertain that it was subject to a motion to quash. Wiley v. State (1876), 52 Ind. 516. Appellee argues that the defect was cured by the evidence of the accused. To this we cannot agree. To support this proposition, appellee cites Adams v. State (1946), 224 Ind. 472, 69 N.E.2d 21. However, in that case there was no motion to quash filed, and the accused stipulated his age at the time of entering his plea. The court held that this cured the defect. In the case at bar, appellant was entitled to have the affidavit made sufficiently certain so as to advise him of the offense charged. Without the allegation as to age, as required by the statute, the offense was subject to a motion to quash. It was error to overrule the motion.
The verdict of the jury finding appellant guilty of the crime of grand larceny was based upon the fourth count of the affidavit, charging robbery while armed. Since the 5. necessary elements of robbery were not alleged, and none of the elements of the offense of grand larceny was alleged, there could not be a finding of guilty of the crime of grand larceny. Hazlett v. State (1951), 229 Ind. 577, 99 N.E.2d 743. It was error to enter judgment for the crime of grand larceny.
Appellant further asserts that the motion to quash should have been sustained as to count two of the affidavit, charging the possession of burglary tools, under § 10-703, Burns' 1942 Replacement, supra, contending that it was necessary to separately describe such tools; and further contending that, in charging the prior conviction, it was necessary for appellee to allege the name of the court where the prior conviction was obtained, the charge on which the accused was tried, and the date and effect of the judgment of conviction. Count two of the affidavit, omitting the formal parts, is as follows:
"If any person previously convicted of a felony be found having in his possession any burglar tools or implements with intent to commit the crime of burglary, such person shall be deemed guilty of a felony, and on conviction thereof shall be imprisoned not less than two [2] years nor more than fourteen [14] years, and the possession of such tools or implements shall be prima facie evidence of the intent to commit burglary."
"David J. Milbourn first being duly sworn upon his oath says that on or about the 5th day of September, 1950 in the County of Noble, State of Indiana, Sam Goldstein, who had previously been convicted of a felony, to-wit: robbery, did then and there unlawfully and feloniously have in his possession burglary tools and implements with the intent to commit the crime of burglary, contrary to the form of the statute in such cases made and against the peace and dignity of the state of Indiana."
The motion to quash was based on the two statutory grounds ____ that the facts in count two did not constitute a public offense and did not state the offense charged with sufficient 6, 7. certainty. The general rule is that an offense stated in the substantial language of the statute is sufficient as against a motion to quash. However, § 10-703, Burns' 1942 Replacement, supra, is an exception to the rule. The words "burglar tools or implements," as used therein, are of such a general character that they are not sufficiently certain in themselves to apprise the accused of the charge when a motion to quash is filed. We feel that the law is well stated in 9 Am. Jur., § 88, pp. 282, 283, as follows:
"The indictment should contain a sufficient description of the tools to advise the accused as to what particular tools he is charged with having in his possession."
The averment in count two of the affidavit ". . . have in his possession burglary tools and implements . . ." is a material fact, stated in a defective manner and form. It is not 8, 11. sufficiently certain, and therefore is subject to the motion to quash. We cannot agree with the argument of appellee to the effect that to describe the tools would be pleading evidence, as the burglary tools, if not substantially described, could cause the accused to face the possibility of being twice placed in jeopardy. Further, a substantial description of the tools is necessary to advise appellant of the crime with which he is charged. The second count of the affidavit is further not sufficiently certain in that it failed to allege the time, place, and judgment of the alleged previous conviction of the felony of robbery. It is necessary, in order to properly advise appellant of the offense charged, to allege the previous felony of which he was convicted, with the time, place, and judgment. Failure to allege the previous conviction with sufficient certainty renders the charge subject to the motion to quash the second count of the affidavit.
See Dougherty v. State (1934), 206 Ind. 678, 680, 191 N.E. 84, for affidavit in wording of statute not subject to a motion in arrest of judgment.
See "Conviction," 9 Words and Phrases, p. 593 et seq.
The Attorney General further frankly admits that appellant was charged under the first count of the affidavit with entering to commit a felony, under § 10-704, Burns' 1942 12, 13. Replacement, supra, and was not charged with third degree burglary, under § 10-701, Burns' 1942 Replacement, supra. The record reveals that the jury was instructed concerning the offense of third degree burglary, that a verdict of guilty of the crime of third degree burglary was returned, that judgment was rendered against appellant for third degree burglary, and that sentence followed. Third degree burglary is not an included offense in entering to commit the felony charged herein, under § 10-704, Burns' 1942 Replacement. The law is well settled that if a person is found guilty of a crime that is not charged in the affidavit or indictment, the verdict is contrary to law. McGuire v. State (1875), 50 Ind. 284; Thetge v. State (1882), 83 Ind. 126; Hazlett v. State (1951), 229 Ind. 577, 99 N.E.2d 743, supra. The trial court committed error in entering judgment against appellant for third degree burglary.
Count five of the affidavit adequately charges the crime of second degree burglary, and the motion to quash was properly overruled. Appellant contends that count five of the 14, 15. affidavit failed to allege the ownership of the building or structure. The pertinent part of the affidavit charged that ". . . Samuel Goldstein did then and there unlawfully, feloniously, and burglarously, break and enter into the grocery store of Roy Kellam. . . ." This is sufficient to allege ownership. In the case of Lee v. State (1938), 213 Ind. 352, 354, 12 N.E.2d 949, this court approved an affidavit in which the appellant was charged with second degree burglary, and in which ownership was alleged as "the granary of one Chris Grewe." We again approve the last-cited case. Appellant further contends that there was no allegation in count five of the affidavit to the effect that a building or structure was broken into and entered. However, the term "grocery store," in common usage, means a building or structure in which groceries are kept for sale. We feel that the case of Lee v. State, supra, is also decisive of this question. The motion to quash was properly overruled as to this count.
See 12 C.J.S., Burglary, § 38 b., p. 699.
Appellee contends that, since one count of the affidavit was in proper form, upon which a verdict and judgment had been correctly entered, the other errors were harmless. To this we 16, 17. cannot agree. Harmful error was committed by overruling the motion to quash counts two, three, and four, and in allowing evidence to be introduced on the erroneous counts, which evidence would not have been admissible if the counts had been quashed. Appellee had the burden of showing by the record in the case that appellant was not prejudiced or harmed by the erroneous rulings and inadmissible evidence. In this appellee has failed. Miller v. State (1910), 174 Ind. 255, 91 N.E. 930. Because of the errors committed, the substantial rights of appellant were prejudiced. Rickman et al. v. State (1952), 230 Ind. 262, 103 N.E.2d 207.
Judgment reversed, with instructions to sustain the motion to quash counts two, three, and four of the affidavit, and to sustain the motion for a new trial.
NOTE. — Reported in 103 N.E.2d 438.