*1 lаws, bar, Many those in the including case at attached significance to results of the 1970 U.S. Decennial Census. Our Governor was under his acting obligation fully constitutional uniformly execute laws of Indiana when he declarеd the cen- day, thereby sus results to be on a effective certain insuring application uniform of those census results to the laws to which they pertained throughout the state.
The evidence in the case аt bar shows that Delwin and Doris pay received increases which January, became effective in although the Governor did not declare the 1970 Decennial Census Therefore, to be February effective Indiana until no compensation additional is due to Delwin and Doris. Since the Trustee Knight Township did not claim that a refund was due we township, have not considered that question. Judgment affirmed.
Robertson, Garrard, J., C.J. and pаrticipating designation, concur.
NOTE-Reported at
Michael State Indiana February 2-576A187. Filed [No. 1978.] Mullin, Indianapolis, for Foley, Foley Gilroy, David W. & appellant. General, Colker, Sendak, Attorney L. F. Assis-
Theodore Robert General, Attorney appellee. tant *2 — Michael A. was tried the court and J. Castаneda found
WHITE, guilty of second The information filed him degree burglary. against in pertinent reads as follows: part
“* * * unlawfully, feloniously did then and there and and enter into the burglariously building break and structure INC., of GOODWILL INDUSTRIES OF INDIANA CENTRAL St., City then and there at 3228 E. 10th Indiаnapolis, situated Marion, Indiana, County of State of which building said and struc- habitation, ture place was not a of human with the intent to com- unlawfully feloniously mit a to-wit: to and and exert knowingly obtain and unauthorized cоntrol over property of said GOODWILL INDUSTRIES OF INDIANA CENTRAL INC., and to deprive said GOODWILL INDUSTRIES OF CEN- TRAL INDIANA of the use and benefit of said property, INC. * * then *.” and there being concedes that the proves
Castaneda evidence he broke and entered contends, however, the store. Goodwill He that the evidence is in- sufficient to sustain a that finding he intended to steal property Goodwill, crime belonging an essential element of the particular contention, here charged. On this we reverse. testimony
The of one of the apprehending officers is that police he and a fellow officer investigated second-degree “a burglary oc- Street”, аt curring Goodwill store located Tenth East [a at] on Indianapolis, July 1975. The Goodwill store and a coin shop, Street, both of which front on East Tenth are in the same building. shop The coin the southeast of the oсcupies building corner store is of an L shape Goodwill’s the to the north and west of the shop. There no door or window between the and the shop store. side, only door window coin are on its south shop оn Tenth Street. they the
When officers arrived found a broken window west store near rear pound- side Goodwill a heard they front window saw Looking through inside store. ing side of the store. The two men the east the west cоming Casteneda, men, they as left apprehended one of whom was were found a by rear Inside the store the officers hole a door. Goodwill north of the coin two feet in diameter wall apprоximately (a Goodwill). south wall of Near the hole the officers found shop hammer, a small chisel and other small hand bag, sledge a duffel (without objection) officer testifying “supposed” tools which There no that these ob- belonged to the intruders. was evidence pro- no that jects belonged any to Goodwill and Goodwill any testimony express was disturbed. Nor was there perty im daytime the night- whether in the dicating incident oсcurred any were nor direct evidence that the doors closed was testimony entered. accomplice before Castaneda support is sufficient an inference that window broken only it. in this cаse is was made issue implied finding whether there is evidence sufficient to sustain the entered with to exert unauthorized control personal property, over Goodwill’s which was the felonious intent *3 charged. (1976), 841, 842-843,
Lisenko v. State 265 Ind. N.E.2d issuе, closely to issue to but all the speaks an akin this not at same opinion Appeals issue. That Court a of Supreme supersedes Court (345 872) N.E.2d which opinion had held that “the evidence does support any nоt inference that appellants intended to commit theft That was upon entering building”. holding based on fact any “[tjhere that is no evidence that inside of the property building any The missing Appeals was or disturbed in mannеr”. of Court therefore reversed. concurred because he felt Judge Garrard bound do so by Supreme including to Indiana precedent, Court Crawford (1968), 437, 241 He v. State 251 Ind. N.E.2d 795. also wrote con- in with curring expressed agrеement which he Justice opinion in Arterburn’s and the absence opined dissent “[i]n Crawford intent, was made with some entry of evidence that other felony may reasonably intent to be inferred from the time entry which madе.” and manner in was When the Supreme granted petition Court Lisenko’s to transfer Justice Arterburn wrote the which overruled majority opinion State, supra, and held that the absence “[i]n
Crawford entry evidence this was mаde with some forced of intent, lawful think may we that the intent to commit a reasonably be inferred from the force and manner in which (355 here made.” N.E.2d at our emphasis.) hesitancy We have no in that rule to at applying the case bar when and we do it leads us to the conclusion that the trier of fact ample
below had reason infer to from the evidence before him that and his companion Castaneda broke and entered store with felony, Goodwill’s intent to commit a but not i.e., to commit the alleged, not intent to steal Goodwill’s Lisenko, property. There is no in absence as there was of an evidence of intent other than the intent charged. State’s uncontroverted evidence of what and friend did after Castaneda they entered supports only one inference of reasonable felonious intent: burglarizе They Intent to shop. busily the coin were too noisily engaged way in the task digging their into the coin shop for theft of Goodwill’s objective merchandise have been their they when entered Goodwill’s store. Such an infеrence unreasonable. The as evidence to the structural relationship coin and the store shop makes obvious their for trying reason break into the coin shop through the shop store. coin hаd no door window except Tenth Street we which trial court judicially know is a well traveled artery. Fortunately vehicular shop the coin proprietor their secluded “L” digging spot the Goodwill store was public not as isolated from (auditory notice visual) they not as apparently had supposed. Had been charged with breaking Goodwill’s store with intent feloniously therein to burglariously enter break and into the adjacent coin with shop commit theft the *4 would proved have that charge. But Castaneda never has been in jeopardy of that charge.
The judgment is reversed and the cause is remanded with direc- tion to acquit discharge the to defendant as the crime of which
523 in this cause. he was convicted with directions. and remanded
Reversed Lowdermilk, J., concurs. designation, participating Sullivan, P.J., opinion. with dissents
DISSENTING by our Supreme decisions P.J. —Were it not recent SULLIVAN, (1976), N.E.2d 841 and Lisenko v. State in 265 Ind. 355 Court 220,1 (1976), find would v. State in 265 Ind. 356 N.E.2d Carter not persuasive. if majority position appealing the logic Holmes, “The life of the if to believe Mr. Justice we are Holmes, Common it has been logic: experience.” law has not been (1881). in which is reflected the above- Law Thus the “experience” estimation, my implementation decisions in prevents, cited the majority’s logic. Cartеr, is that from supra, I draw from Lisenko message forcibly broke and which alone reflects that a defendant hours, a of fact early morning trier night during
entered late at to commit reasonably infer that the defendаnt intended may which were entered. Conceded- crime of theft inside premises to Lisenko ly, couched in terms “intent Carter general are intent”, felony” or “felonious but the fact remains having specific with the intеnt commit the charged Lisenko mere was suffi- of theft.1 Thus the intent to commit theft therein. supply specific cient to in- view the reasonableness of that majority Under different, is evidence to show a albeit ferеnce disappears unlawful, intent, adjacent ap- store. This burglary of an e.g., in- had an reject burglar seems that the proach possibility (1) i.e., stealing felonies: theft tent to commit two Goodwill, the Lisenko-Carter inference and provided an Appeals Carter opinion of Neither the 3d District of the Court of State, superseding opinion by Supreme reported at N.E.2d nor the Court transfer, supra, alleged partiсular have in- Carter was discloses degree burglary. when he committed the second tended *5 (2) felony burglary Shop, which arguably Coin could n'ot be committed within the Goodwill premises.2 majority say result is appears еvidence of entered, an intent other than theft premises from original Lisenko-Carter intent is provided reasoning rendered unreasonable. It seems to me that if intent steal Goodwill could be reasonably only inferred if the evidence concerned time and manner of the breaking entering, evidence of a possi- additional ble or probable intent cannot make the original inference A reasonаbly unreasonable. trier of fact could conclude from the only evidence of record here that defendant’s intent was to steal from the a different trier fact Shop Coin but conclude that might otherwisе, Castaneda intended to' steal from' both places. Were it Lisenko-Carter inference resting mere evidence upon and its manner and be must viewed unreasonable as a mat- ter I already of law. have noted that our Supreme Court in- has contrary. They structed us to the have told us inference is reasonable.
For these I compelled reasons am to dissent.
NOTE—Reported at