This is an appeal from a judgment of the Criminal Court of Marion County, Division Two, by which appellant was convicted of the crime of Second-Degree Burglary pursuant to Burns’ Indiana Statutes, Anno., [1956 Repl.], § 10-701.
The evidence elicited at trial relates the following: On Sunday night, December 4, 1966, at abоut 9:05 P.M., an Indianapolis police officer received a call, via his police radio, to proceed to the Veterans of Foreign Wars Post on English Avenue where a burglar alarm had been set off. The burglarized building was equipped with an alarm which sounded when it was forcibly еntered. The burglars had gained entry by breaking out a glass which was covered with wooden bars. When this glаss was broken it triggered the alarm.
Approximately three (3) minutes after receiving said call, thе police officer arrived at the scene; and about a minute thereafter he saw the appellant near the burglarized premises running away from said area in a southeasterly direction. The officer, after ordering the fleeing man to stop, found him where he was hiding nеxt to the building; and also, the appellant’s accomplice was found lying on the ground about ten (10) feet from the appellant.
When the police officer arrived at the plаce where the appellant was standing, he noticed a cigar box lying on the ground between the appellant’s feet. The cigar box contained $25.63. *521 The police officеr also testified that he found a “pry bar” and a screwdriver by the appellant.
After the appellant had been advised of his rights by the police officer, he was questioned. Appellant stated to his interrogator that he and his accomplice had planned the burglary together; and also, he admitted that they had both been inside the building.
The cigar box found at the feеt of the appellant was positively identified by two (2) witnesses at trial as being from the burglarized premises.
On appeal, appellant raises as his only assigned error:
The insufficiency of the evidence to support the judgment of the Court.
More spеcifically, appellant contends that there was no evidence proving that he actually broke into the building or ever entered it. Therefore, since the burden is on the State tо prove each and every element of the crime charged, the conviction must nоt stand because there is no proof of the appellant’s breaking and entering.
It is well sеttled in Indiana that a conviction for burglary may be sustained on circumstantial evidence alone.
Bradley
v.
State
(1964),
Therefore, the issue in this case presents itsеlf very clearly: whether or not the circumstantial evidence is sufficient to sustain this judgment.
In Bradley v. State, supra, the following is stated:
“In our judgment thе evidence in this case that the large front window of the store was found broken shortly after *522 midnight, in response to a burglar alarm, coupled with the discovery of appellant in the immediate vicinity standing next to a broken display case of knives and with a straight razor in his pocket, each item being identified as being the same as or like those sold in the store, and his possessiоn of the same being unexplained was sufficient to sustain the jury’s verdict of guilty.”
Raymer
v.
State
(1964),
. . that appellant was found lying face down on the ground just outside the door which had been burglariously entered, with tools at his side identified as having been used in the burglary, in the presence of cartons of cigarettes taken from the store, with a loaded revolver lying at his side, coupled with the appellаnt’s partial admission to the effect that nobody had assisted him in breaking into the store, was amрly sufficient in our judgment to connect appellant with the crime and sustain the court’s finding of guilty.”
In the сase at bar the appellant was seen fleeing the scene of a burglary shortly after the alarm had sounded. He was apprehended almost immediately thereafter neаr the burglarized building, and lying on the ground, between the appellant’s feet, was a cigar box which hаd just been removed from the illegally-entered building. In addition, burglary tools were also found near the appellant’s person by the arresting officer. Appellant stated that he and his aсcomplice had planned the job together and they had both been inside the building.
In view of the Indiana cases just examined we feel that this circumstantial evidence is sufficient to sustain the judgment of the trial court.
Judgment is, therefore, affirmed.
Note. — Reported in