Abel v. State, 1--175A15

• Decision Date: 16 September 1975
• Docket Number: No. 1--175A15,1--175A15
• Parties: Gordon L. ABEL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 848

333 N.E.2d 848

165 Ind.App. 664

Gordon L. ABEL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1--175A15.

Court of Appeals of Indiana, First District.

Sept. 16, 1975.

[165 Ind.App. 665] William G. Smock, Terre Haute, for appellant.

Theodore L. Sendak, Atty. Gen., Robert M. Lingenfelter, Deputy Atty. Gen., for appellee.

LOWDERMILK, Judge.

ISSUES:

The issues presented for review in this cause are:

(1) Whether the theft statute is unconstitutional in that it makes an arbitrary classification and penalty for theft of an automobile when the penalty for other acts of theft is determined by the value of the item.

(2) Whether the court committed reversible error in giving State's Instruction No. 1.

(3) Whether the court committed reversible error in giving State's Instruction No. 2.

(4) Whether the court committed reversible error in not sentencing the defendant to one year, pursuant to the verdict returned by the jury.

STATEMENT OF THE FACTS:

On July 17, 1974, Noeleana M. Pierce parked her 1964 automobile at a grocery in Terre Haute and when she returned the same was gone from the parking lot. She reported it to the police, who put the alert on the air and the car was shortly thereafter stopped by the West Terre Haute Police.

Defendant Abel was alone in the car. After being stopped by the police he got out of the car and asked the police why they had stopped him, as he was the owner of the car. This claim was volunteered by Abel even before the police had spoken to him. Abel showed evidence of being under the influence of intoxicating liquor.

STATEMENT OF THE CASE:

Defendant-appellant Abel was charged with the crime of theft on the 17th day of July, 1974. Thereafter, pauper counsel was appointed. Abel waived arraignment and entered a plea of not guilty. On August 13, 1974, his trial was concluded by a jury returning a verdict of guilty of theft of a motor vehicle, wherein he was fined in the sum of $200.00, sentenced to a term of one year, and disfranchised. The court, however, overruled the verdict as to the punishment it imposed, and instead sentenced Abel to a one to ten year term, pursuant to the theft statute hereinafter set out.

ISSUE ONE:

Abel contends that the theft statute, IC 1971, 35--17--5--12, Ind.Ann.Stat. § 10--3039 (Burns Supp.1974), is unconstitutional in that it makes an arbitrary classification and penalty for theft of an automobile, when the penalty for other acts of theft is determined by the value of the item stolen; that the theft statute is unconstitutional in that it gives a higher penalty for the theft of an automobile with a value of under $100 than it does for the theft of other property with a similar value.

Section 35--17--5--12 provides, in part, as follows:

'(1) A person convicted of theft of property not from the person and of less than one hundred dollars ($100) in value shall, except as otherwise provided in this section, be fined not more than five hundred dollars ($500) or imprisoned for not more than one (1) year, or both, or such person may be imprisoned in the state prison not less than one (1) year nor more than five (5) years, and fined in a sum not exceeding five hundred dollars ($500) and be disfranchised and rendered incapable of holding any office of profit or trust for any determinate period.

(3) A person convicted of theft of property of one hundred dollars ($100) or more in value shall be fined in any sum not exceeding five thousand dollars ($5,000) or imprisoned for not less than one (1) year nor more than ten (10) (5) A person convicted of theft shall be fined in any sum not exceeding five thousand dollars ($5,000) or imprisoned for not less than one (1) year nor more than ten (10) years, or both, and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period regardless of the monetary value of the stolen property if:

years, or both, and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.

(d) the property stolen is a motor vehicle or is a gun suitable for use as a firearm . . ..'

Abel further claims the higher penalty clause for theft of an automobile constitutes cruel and unusual punishment and constitutes a denial of due process of law and a violation of equal protection of the laws.

In State ex rel. Miller v. McDonald (1973), Ind., 297 N.E.2d 826, our Supreme Court said:

'The Equal Protection Clause does not prevent a state or municipality from indulging in reasonable legislative classification. Graham v. Richardson (1971), 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534. Generally speaking, if a classification is shown to have any rational or reasonable basis, it will be sustained. Graham, supra; United States v. Maryland Savings-Share Ins. Corp. (1970), 400 U.S. 4, 91 S.Ct. 16, 27 L.Ed.2d 4. Normally, the enactment is presumed to be valid; the burden being on the party challenging its validity to overcome such presumption. Graham, supra; San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16.' (Original emphasis.) 297 N.E.2d at 829.

Abel's claim is more appropriately directed to Art. 1, § 16 of the Indiana Constitution, which provides in part that '(a)ll penalties shall be proportioned to the nature of the offense.' In Clark v. State (1974), Ind.App., 311 N.E.2d 439, 440, Judge Robertson discussed this same issue:

'As a general rule, the courts do not question a particular punishment prescribed by statute. As stated in Landaw v. State (1972), 258 Ind. 67, 279 N.E.2d 230, '(i)t is clearly within the sole power of the Legislature to fix the punishment for crimes, IC 1971, 1--1--1--2, being Burns' § 9--2401 . . ..' Moreover, the courts may not judicially alter the punishment provided by statute even if it seems excessive or inappropriate.

'(W)hile fines and penalties should not be excessive, and must be proportioned to the nature of the offense, that does not mean that this court can set aside a conviction and sentence, within the statute, merely because on the record it may seem severe.' Blue v. State (1946), 224 Ind. 394, 400, 67 N.E.2d 377, 379.

A penalty provided by the legislature may be set aside by the courts only if it is unconstitutional. Landaw v. State, supra; Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815.

Art. 1, § 16 of the Indiana Constitution provides in part: '(a)ll penalties shall be proportioned to the nature of the offense.' The accessory statute pursuant to which Clark was sentenced, IC 1971, 35--1--29--3, Ind.Ann.Stat. § 9--103 (Burns 1956), states that the punishment for the accessory shall be the same as that provided for the principal. Clark contends that the statute thus violates the constitutional provision calling for proportionate penalties. This contention is not supported by Indiana law.

Most cases dealing with art. 1, § 16 have concerned lesser included offenses. Statutes often provided for a greater possible penalty for the lesser included offense than was provided for the greater In fact, the offenses of rape and accessory after the fact of rape are separate and distinct. As such the legislature may properly impose a penalty for one of the offenses which need not be proportionate to the penalty provided for the other. Cf. Lane v. State (1972), Ind., 288 N.E.2d 258.' (Our emphasis.) 311 N.E.2d at 440.

offense. However, the Indiana Supreme Court, relying on art. 1, § 16, has held that the penalty for the lesser included offense may not be greater than that provided for the greater offense. Dembowski v. State, supra; Hobbs v. State (1969), 253 Ind. 195, 252 N.E.2d 498. It must be noted, however, that the penalty for a lesser included offense may be equal to that for the greater offense. Art. 1, § 16 prohibits only a greater penalty for the lesser included offense. Brown v. State (1973), Ind., 301 N.E.2d 189. Burns § 9--103 provides that the penalty for the accessory is the same as that for the principal. Therefore, analogizing the offense of accessory to a lesser included offense would still not support appellant's contention that the accessory statute violates art. 1, § 16.

In the case at bar, it is clear that two separate offenses are not committed when a car worth less than $100 is stolen. Inasmuch as there is no lesser included offense here involved, there can be no violation of the constitutional mandate in Art. 1, § 16 of the Indiana Constitution. Clark v. State, supra.

ISSUE TWO:

Abel's next assignment of error concerns State's Instruction No. 1 that was read to the jury, and is in words and figures as follows, to-wit:

'While it is necessary that every essential element of the crime charged against the accused should be proved by the evidence beyond a reasonable doubt, this does not mean that all incidental or subsidiary facts should be proved beyond a reasonable doubt. Evidence is not to be considered in fragmentary parts and as though each fact or circumstance stood apart from the others, but the entire evidence is to be considered and the weight of the testimony is to be determined from the whole body of the evidence. A circumstance considered apart from other evidence may be weak, if not improbable, but when viewed in connection with surrounding facts and circumstances, it may be so well supported as to remove all doubt as to its existence. Acts considered apart from other evidence may appear innocent, but when considered with other evidence may impart guilt.'

Abel timely filed his written objection to said instruction, which objection reads as follows, to-wit:

'Defendant objects to State's Instruction Number One as being so vague as the Jury could not possibly understand when the instruction means. They fail to define what is an essential element and they fail to define what are incidental and subsidiary facts. Although the Supreme Court has recently ruled on this instruction, I feel that the...