HALL v. STATE, 164 Ind. App. 234 (1975)

328 N.E.2d 226

JOHN HALL v. STATE OF INDIANA.

No. 2-174A51.Court of Appeals of Indiana.
Filed May 19, 1975.

CRIMINAL LAW — Accessory — IC 1971, 35-1-29-1. — Under the accessory statute, a person who aids or abets a breaking and entering can be convicted as a principal whether or not be himself enters.

Appeal from a conviction of second degree burglary.

From the Wabash Circuit Court, John W. Beauchamp, Judge.

Affirmed by the Second District.

Richard L. Swartz, Reading and Swartz, of Wabash, for appellant.

Theodore L. Sendak, Attorney General, Glenn Richard Potter,
Deputy Attorney General, for appellee.

WHITE, J.

Appellant Hall was convicted after jury trial of having burglarized a grocery store. His argument in this appeal is that inasmuch as the undisputed evidence shows that he never entered the store he cannot be convicted of a crime that requires breaking and entering.

The undisputed evidence also shows that three persons participated in the burglary, that it was Hall’s idea, that Hall attempted to enter the store but was too large to fit through the opening, that he stood outside the opening and told the smaller companion who did go inside how to open the safe, that he took possession of the money as it was passed out through the opening, that he drove the three participants and the stolen money from the store, and that he divided the stolen money equally between the three participants.

Under the accessory statute, IC 1971, 35-1-29-1, Ind. Ann. Stat. § 9-102 (Burns 1956 Repl.), a person who aids or abets the breaking and entering can be convicted as a principal whether or not be himself enters. Smithhart v. State (1971), 256 Ind. 533, 270 N.E.2d 740; Maynard v. State (1973), 157 Ind. App. 573, 301 N.E.2d 200; Tinsley v. State (1974),

Page 235

260 Ind. 577, 298 N.E.2d 429. The trial court correctly instructed the jury on that statute.

The judgment is affirmed.

Sullivan, P.J., and Buchanan, J., concur.

NOTE. — Reported at 328 N.E.2d 226.