holding that "building and structure occupied” by certain persons in burglary information "sufficiently indicates the presence of persons in the building”
How later courts described this case
- holding that "building and structure occupied” by certain persons in burglary information "sufficiently indicates the presence of persons in the building”
- “A conviction for burglary may be sustained by circumstantial evidence alone.”
Written by the judges who cited it.
The opinion
DeBRULER, Justice,
concurring and dissenting.
The breaking and entry of a “structure of another person” is Class C felony bur *1027 glary. I.C. 35-43-2-1. The breaking and entry of a “structure.. .that is a... home or place of lodging” is the greater Class B felony burglary. I.C. 35-43-2-1; I.C. 35-41-1-10. This pleader alleged the breaking and entry of a “building and structure occupied by Kevin Schlatterer and Clyde Hill, on South Chestnut Street.” In so doing, the pleader failed to communicate the core idea, through the two modifiers, joint occupation and street location, that the structure entered was a “home or place of lodging.” Because that essential idea and element, which serves solely to distinguish the Class C from the Class B offense, was totally omitted from the pleading and is in no manner communicated, not even partially or ineptly, the pleading clearly fails to “fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the of-fence intended to be punished[.]” United States v. Carll, 105 U.S. 611, 612 , 11 S.Ct. 712, 713 , 26 L.Ed. 1135, 1135 (1881); Adams v. State (1951), 230 Ind. 53 , 101 N.E.2d 424 . This Class B felony conviction should be reduced to the crime charged, namely Class C felony burglary, and a new, consistent sentence imposed. No amount of evidence can cure such a defective pleading. Goldstine v. State (1952), 230 Ind. 343 , 103 N.E.2d 438 .
DICKSON, J., concurs.