*1 Stanley of Indiana. Rehearing April March denied
[No. 1969.] 468S58. Filed Indianapolis, appellant. Robinson, Robert Price, Deputy General, Attorney L. Dillon, John John J. General, appellee. Attorney an under appeal conviction
Givan, J . This is charged wherein counts affidavit two of Hook entering house the business the first count City York Street Inc., at 1642 New Drugs, East located therein, Indianapolis to commit the intent obtaining of unauthorized and felonious to-wit: corporation. property of said over control charged the affi- second count of davit with the unlawful and control of narcotic drugs, morphine dilaudid, opium. to-wit: derivatives
Trial was jury Court without of a intervention *2 resulting finding guilty of on each of the counts. two Defendant was thereafter sentenced to the Indiana State Prison for two one one to and years, terms: one ten for not years. than two less nor more than ten
Appellant’s timely motion for a new trial was overruled appointment purpose and after perfecting of counsel the appeal, belated, a for new filed amended motion trial was and overruled. assigns appellant overruling
The error in this Court the trial, presents belated motion for new which motion questions the the decision the Court is not sustained evidence, sufficient and that the decision the Court is contrary to law.
Appellant first contends that there is no evidence in this unlawfully case that he entered the business Hook house Drugs, Inc., with the intent commit therein. to damage building was no evidence external to indi- the cating part fact, entry appellant; forceful on the the in concerning entry the evidence uncontraverted is that he did, fact, building during regular enter business is, therefore, question hours. It of whether or not there is support sufficient evidence in the record to the Trial Court’s finding did, fact, that he enter with the intent commit felony. Drug The Hook Store testified personally he closed the store at o’clock 10:00 P.M. question. day he He stated that followed his normal locking checking routine all the and doors see might remaining. He further testified that store; telephone he saw no one in the he checked the booth asleep in the store where the had fallen claims he during open. the time No was one was tele- phone containing He booth. further testified that the drawer locked was at time he left the store. took and stand own behalf witness in his testified that he had entered the store in at about telephone o’clock 11:00 went booth at the back the store. He testified he had taken some dilaudid about evening 8:00 or 9:00 o’clock that and at the time he entered phone feeling woozy drowsy. booth He stated phone sleep. that while he was in the booth he went to When up phone feeling he woke about 11:30 he was in the booth get so bad that he went over to the narcotics drawer some take, searching medicine to and while he was for the medicine police came. police they officers testified that when response approximately store in to an alarm at P.M. 11:48 hiding between some bottle racks prescription drug store, booth in the the narcotics *3 pried open lying Upon drawer had been on and was the floor. searching various found in the tablets were appellant’s sock. The officer testified that State’s Exhibits 2 and 4 were which the bottles officer removed from the appellant’s testimony of sock. the lab technician was that opium, namely: State’s Exhibit No. 2 contained a derivative morphine, and that Exhibit State’s 4 contained derivative opium, namely: dilaudid. These further exhibits were being identified in the narcotics drawer drug prior in the to the offense.
Further evidence disclosed that ladder had been moved permit in the room of back store so as access top room, cigarette loft on the trash and there that were top butts the trash room. There also a door was closing locked time was between the back room and the store, part main door had an obvious alarm system following closing Someone, attached thereto. the. evening, that had knocked a hole in the wall which permit from the back room into the main
hole would access part of the store. ample apparent that there evidence from
It thus had, fact, find that which the Court could open, it still entered the store while was gain room, moved ladder so as access to back room, awaiting top trash and hid loft on further evidence that while store. cigarettes, and after determin he hid he had smoked several ing persons store he descended had left the that all authorized partition ladder, into the main knocked a hole in the drawer, store, lock on the broke the went to narcotics removing drawer, process and narcotic while appel police and found the from the officers entered drawer searching person, they attempting Upon found lant to hide. was, fact, possession of unauthorized that drugs. Having found, entitled to infer that the Court was so appellant did, fact, at the time have a felonious intent held that the issue of he entered the Court has store. This the trier intent of fact to be determined (1963), 244 Ind. Tait v. State fact from all of the evidence. may 35, 44, inferred from circum E. Intent 188 N. 2d 537. permit legitimately Luther v. State it. stances which 619, 625, Kondrup v. State N. E. 177 Ind. E. 235 N. 2d 703. alleges no evidence in the that there is next feloniously appellant unlawfully and to establish record He and control. morphine dilaudid in his had morphine alleges there is no evidence further out, clearly opium. above set derivatives of As are dilaudid 2 and 4 Exhibits were record that State’s shown *4 arresting appellant by the from the removed opium, 2 a derivative of officer, Exhibit contained and that 4 a derivative morphine, that Exhibit contained namely: namely: opium, dilaudid. prove not that did further claims State by appellant authorized law of the United States was not possession or morphine and dilaudid in his to have control, total lack of evi under there is a his general dence such lack of authorization. This same prosecutions many in criminal raised has been times thing doing posses alleged or crime is the where the may sing thing under certain be which circumstances particular case lawful, which but previously an Court has stated when unlawful. This by and the same or other offense is created statute statutes exceptions necessary it not for the make thereto State by stating proving negate exceptions the defend- therefore, is, not come It not incum does within same. upon prosecution the unlawful bent State possession possible exceptions prove all or to narcotics to by negate every hypothesis affirmative evidence conceivable might gained have lawfully. Day 241 N. E. See 357, 359. 2d hardly the instant case could be conceived that lawful
In have been of the fact that could established view ques- drugs there is obtained the evidence that hiding breaking store, open nar- tion and then possession by drawer to obtain found cotics in his arresting officer. under the statute also maintains charged, namely: count of the Acts second offense 2(a), amended, ch. and found in Burns’ § Supp. 10-3520(a), too indefinite and uncertain § give notice of act. what constitutes This section reads as follows: “(a) any person manufacture, shall be unlawful for It control, sell, administer,
possess, prescribe, under his have drugs except dispense, compound or use or the the laws United as authorized States *5 Indiana, any
state person or for public to be found in a place drugs....” under the influence of narcotic nothing We quoted find indefinite or uncertain in above language. By every person this put statute on notice that the drug except of a narcotic
authorized laws the United or the States Every person is, State of therefore, put Indiana. any possession notice that authorized, such must be they required are to obtain such authorization before acquiring possession. they If acquired in fact have such authorization, they may readily demonstrate the same to making inquiry concerning official possession. lawful their language doWe not see how of this statute could mislead any possessor Any confuse of narcotics. such could draw no possess other conclusion than that to narcotics with express out crime, authorization under law is certainly any position individual to know whether or possesses not he We, therefore, such authorization. find no appellant’s merit to contention that the statute is unconstitu tional give because it is indefinite and uncertain and fails notice of what constitutes an unlawful act. This Court has previously held that a statute is not unconstitutional reason intelligent capable if it is indefiniteness construction and interpretation by persons possess ordinary compre who but hension, language conveys adequate description its prohibited. the evil intended to be Ule v. State 264, Ind. 194 N. E. Hunt v. State 585, 588, 146 E.N.
The decision of the Criminal County, Court of Marion I Division is affirmed. Hunter, J.J.,
Arterburn and concur. J.,
Jackson, in concurs result. affirming DeBruler, C.J., concurs conviction on count affirming opinion. dissents conviction on count 1 with Dissenting. Concurring affirming concur conviction on C. J . I DeBruler, charging with unlawful Count majority opinion narcotics, wherein I dissent but 1, charging Appellant Count with conviction on affirms the Drugstore entering intent to commit theft. Hooks been violated Count states to have statute part: . house . . . “Whoever enters . . business added.) (Emphasis therein. to commit a . . .” intent 10-704. Burns’ Ind. Ann. § Stat. *6 Drug- Appellant entered Hooks facts showed during p.m. p.m., time store between 8:00 and 9:00 drugstore public open At to the business. 10:00 checking p.m. the after to see that closed everyone to had left. There was evidence show sufficient Appellant’s 11:48, entry between when sometime burglar completed sounded, Appellant initiated and alarm drugstore, plan of the a conceal himself storeroom everyone had left the and then to break until wait police caught Appellant drawer. The into the narcotics had from taken in the store narcotics the drawer. Appellant’s agree contention
I that there was no evi- support drugstore an inference that he entered dence to Undoubtedly Appellant a the intent to commit theft. trespass guilty of theft besides unlawful is Appellant However, perpe- fact of narcotics. to conceal trated scheme himself storeroom and at the time he not evidence that entered committed theft to commit a theft. One he had the intent to two the store hours drugstore prior time public pay open to the and also contained a for business public Appel- telephone There no evidence of use. when 44 drugs. plan formed the steal Under the statute
lant entry intent to commit theft and the must be concurrent. 164, (1967), 411, v. 11 Ind. Dec. Ind. In Goodloe State 248 626, 2d this Court 229 N. E. said: showing exactly Appel- evidence “. . . is no when the building office, lant entered the and there is that he entered the Heart Association no evidence which it can be inferred building time other than when open general public. and office were to the that the “. . . it well settled felonious intent must exist entry at the time there is to be a conviction.” Dec. at 168. People Kelley (1916), 556, v. full accord see: Ill. 113 fn 274 926; 624, Conrad 154 Tex. N. E. Crim. R. 225; Hall, Moore 2d State v. S. W. 12 N. H. 230 J., Principles (2d Ed.). of Criminal Law 185-190 judgment on Count should be reversed. Reported in N. 149. E. 2d
Note. — Indiana Personnel State Board v. Parkman. petition granted On to transfer 369S49. March No. Appellate opinion App. 255, February See Court Ind. 1968.]