*1 Jay et al. v. Indiana. 30,593. April 19,

[No. Filed denied June 1965.] *2 Clouse, John Evansville, appellants. D. General, Steer's, Attorney

Edwin K. and David S. Wedding, Deputy Attorney General, appellee. Appellants charged by were affidavit

Landis, J. with jury after and a trial were entering felony commit convicted of a for which years were ten sentenced one to in the Indiana Reformatory.

Appellant Gipson has heretofore filed motion to appeal him, dismiss the as to and this has Court sus- appeal tained motion said and the is dis- therefore appellant Gipson. missed as to

Appellant Jay contrary first contends the verdict is for the law reason that there was insufficient evi- George prove Realty Corporation dence to the Koch dwelling burglarized. The owned the affidavit house respect charged in this that burglariously ". .. did . . . enter break and into dwelling

the house of GEORGE KOCH REALTY CORPORATION, HARP in which NOAH then lived, felony, with intent to commit a to-wit: unlawfully take, carry away to goods, and steal the personal property chattels and said the HARP.” NOAH fully supports

The evidence introduced at the allegation Harp in the affidavit that Noah dwelling burglar- possession in house of the The ized. evidence was therefore sufficient against appellant’s sustain the verdict con- as tention, burglary for it a is well settled crime against rightful possessory possession interest or premises. Bradley See: N. E. 2d discussion therein authorities contained. may

It therefore immaterial the evidence sufficiently George not have shown that Koch Realty Corporation was the owner of the house allegation burglarized, on the affi such may surplusage. davit treated as be contends further court erred in over ruling appellant’s objection question propounded ato

by appellee as to who was the owner of the *3 property However, on 2001 Ohio. West it does appear question that this was answered question no is us as to the cor therefore before ruling. of Poison v. State rectness the court’s See: (1965), 665, 638, 246 Ind. N. E. 2d Henderson v. 326, (1956), 132, 134, 235 Ind. 131 N. E. 2d 327.

Appellant it error trial also contends was the alleged permit Farley, an ac- court to Alma Jean testify. appellant, complice of to cites (1956 Repl.),1 Burns’ as follows: §9-1603 following competent are "Who witnesses. —The competent persons are witnesses: testify.” Accomplices, "Third. to when consent Appellant complains permitted that he was not to 1905, 169, §235, p. 584. Acts ch. proof an offer make that witness ac- was an complice testify. consent would not The record fails to out contention for fails bear it any by appellant to disclose effort made was whatever testify to show that witness had not consented to this question presented. therefore is The fact that the witness took stand creates presumption voluntarily. that she did so The fact questions propounded that she answered all to her forthrightly hostility strongly and without indica- voluntary tive she a Moreover, witness. on cross-examination witness it interesting to note that at no time did ask voluntarily the witness whether she consented tes- tify for the State. This contention is without merit.

Appellant has further contended the court in erred failing grant his motion for continuance on the ground appellant surprised George when Elsea as a called witness the State.

The matter of whether a continuance will be granted rests within the sound discretion of ruling

court and the court’s will not be dis- showing turbed in the absence of a clear of an (1954), Liese discretion. abuse 731, 733; E. N. 2d In re Holovachka 245 Ind. 394. There showing by appellant was no here that he was harmed ruling the trial court’s and we must conclude the denial of motion for continuance was not reversible error. urges

Appellant next error for it was the court *4 reject appellant’s to 2, tendered instruction No. viz: Jury, you “Members of the I instruct it is upon produce

incumbent State of Indiana to naturally produced that would evidence have been support charge in an honest effort to in the 538 non-production permits affidavit and in- its given ference that if such evidence had its been

tenor would be to the State.” unfavorable recently (1965), We in Denton 155, 246 Ind. 158, 539, 541, 203 N. E. 2nd held a similar instruction to properly

be refused. See Stevens v. State also: (1959), 19, 27, 784, 240 Ind. 158 N. E. 2d 788. give refusing- We must conclude to this instruc- tion not was error.

Appellant further contends court erred in re- fusing give appellant’s to tendered instruction No. as follows: suspicion, “The circumstances of no matter how grave strong, guilt, or of áre not evidence

' acquitted the accused must be unless the fact guilt proved beyond every their reasonable every hy- to the doubt pothesis exclusion of reasonable their innocence.” consistent with pertaining instruction This dealt with the rule circumstantial evidence there much di and as guilt eye

rect [two evidence burglary] foregoing the' witnesses in Culp properly struction refused. v. State (1944), 486, 222 Ind. 488. Butler 2d 244 Ind. N. E. v. lastly in- contends tendered relating degree burglary structions to first given. -not should have As been convicted but of enter- ing prejudi- felony, with intent to commit a cial error could have been failure committed give these instructions.

Judgment affirmed. Myers,

Arterburn, J., concur; J., Jáckson, J., C. result; Achor, J., participating. concurs in

539 Rehearing On rehearing petition filed for has

Landis, J. contending previous opinion in erred in our hold- we ing appellant’s 141 tendered instruction No. related appellant to first and that since crime, prejudicial not such error convicted of give committed failure to the instruction. opinion considered tendered

Our earlier together appellant 13 14 as instructions Nos. and specific- treated them in had his brief. Instruction degree ally application burglary, its confined specifications and both as stated dealing for motion new with the instructions substantially grouped argued were the same and and together, they them we concluded should be considered together so, and if instruction No. 14 as well as degree pertain solely burglary. would to first However, even if instruction No. 14 is separate apart considered and from No. we do not sufficiently complete intelli- it believe gible by itself so that the court’s failure give Among things it was reversible error. other digest language are we unable to the instruction’s . . to . not intend intent . .”. We unmindful are in Eastin v. State court had it before a similar it instruction and stated that while did not recommend instruction, form concluded it was error to exclude on two instructions intoxication. comparable

We do not believe to the situa- standing tion here instruction No. 14 before us where simply sufficiently by itself clear and under- responsible 1. “The defendants are not to be held specific intent if were too drunk for a exercise conscious particular end, or, words, the will to the in other too drunk to it intend the intent and did not entertain in fact.” standable for us to conclude that the court’s failure give it was reversible error.

The petition other matters contended on for rehear- ing similarly are without merit. rehearing

Petition denied. Jackson, J., Achor, Myers C. Arterburn, JJ., concur. Reported in 206 N. E. 2d 128.

Note. —

Denied in 207 N. E. 2d 501. *6 Houtchens; Lane, Ward v. Warden of the

Indiana Prison. 30,717 30,718. April 19, [Nos. Filed denied June 1965.]