Faulkner v. State

(GARRARD, Presiding Judge,

concurring in result.

I concur in the result reached by the majority because we are bound by the decisions in Gebhart and Robinson cited in the majority opinion.

Nevertheless, I feel compelled to express my view as to why the "rule" of those cases is in error.

Burglary, of course, involves a breaking and an entering with the intent to commit a felony. IC 85-48-2-1. It is not necessary to a completion of the offense that the underlying felony be accomplished or even that a substantial step be taken towards its accomplishment (apart from the breaking or entering), Mason v. State (1984), Ind., 467 N.E.2d 737.

On the other hand, judicial decision has long imposed upon the state the burden of proving the aceused's felonious intent apart from the bare evidence of breaking and entry. See, e.g., Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6. I have no quarrel with that requirement; there is no presumption of felonious intent that attends merely breaking and entry.

The problem arises from how the proof-the totality of the cireumstances-is treated. And it arises typically in cases such as this where an accused is interrupted in his activity, usually by police responding to some form of alarm, before he has had time to fully manifest his underlying intent, whatever it may be.

As a problem in syllogistic reasoning there certainly remains a gap in attempting to conclude from the evidence of the activity present the specific intent held in the mind of the accused. That problem has been previously noted by our courts. See, e.g., Crawford v. State (1968), 251 Ind. 437, 241 N.E.2d 795 (Arterburn, J. and Lewis, C.J. dissenting).

Yet it appears to me that this problem is peculiarly subject to Mr. Justice Holmes' oft-quoted classic admonition that "the life of the law has not been logic; it has been experience."

Thus, common human experience tells us that when a person (a) breaks and enters a dwelling or other building where valuables are kept, or might reasonably be expected to be kept; (b) he does so when the regular occupants are away or expected to be away and at a time or in a manner that his entry is likely to be undetected by passersby; and (c) he does so in the absence of cireum-stances tending to negate a felonious intent or, indeed, demonstrating an intent to commit a different felony, there exists a reasonable inference that the person entered with the intent to commit a theft.

*3I believe that was the essence of the court's analysis and holding in Lisenko v. State (1976), 265 Ind. 488, 355 N.E.2d 841 (DeBruler, J. and Prentice, J. dissenting) which has never been expressly overruled although Gebhart and Robinson appear to do so sub silencio.

It seems to me that the practical difficulty may derive from a tendency to simply assume that in the absence of evidence that the accused rifled drawers or had the jewels in his pocket, there is "nothing more" than the evidence that he broke and entered. As indicated above, I would find that the other circumstances surrounding the entry may themselves be sufficient to establish a reasonable inference that the entry was made with the intent to steal. To hold otherwise, it seems to me, is a repeal of the statute defining attempted burglary as a crime, unless the accused or an accomplice confesses. It also misses what human experience tells us is most probably true.