Allison v. State
| Citation | 157 Ind.App. 277,299 N.E.2d 618 |
| Decision Date | 08 August 1973 |
| Docket Number | No. 2--173A14,2--173A14 |
| Parties | LeRoy ALLISON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Court of Appeals of Indiana |
David L. Martenet, Indianapolis, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for plaintiff-appellee.
On February 17, 1972, defendant-appellant LeRoy Allison (Allison) was charged by affidavit with assault and battery with intent to commit murder (assault and battery with intent to kill, IC 1971, 35--13--2--1, Ind.Ann.Stat. § 10--401a (Burns 1972 Supp.)). Said affidavit read insofar as pertinent:
'. . . that LeRoy Allison late of said County and State, on or about February 17, 1972, at and in the County and State aforesaid, did then and there unlawfully, feloniously and purposely in a rude, insolent and angry manner, touch, beat and strike one Gareth Hodges, with the intent then and there and thereby him, her, the said LeRoy Allison feloniously and purposely to kill and murder, Gareth Hodges . . ..'
On July 21, 1972 Allison was tried before the trial court without a jury and found guilty of assault and battery with intent to commit a felony, (IC 1971, 35--1--54--3, Ind.Ann.Stat. § 10--401 (Burns 1972 Supp.)). On September 6, 1972, the trial court, after expunging from the record the conviction of assault and battery with intent to commit a felony, found Allison guilty of aggravated assault and battery, (IC 1971, 35--13--3--1, Ind.Ann.Stat. § 10--410 (Burns 1972 Supp.)), and sentenced him accordingly.
We find it necessary to consider only one issue: Whether aggravated assault and battery is a lesser included offense embraced within the affidavit which charged Allison with assault and battery with intent to kill.
Although the asserted error was not preserved by appellant's Motion to Correct Error, a similar contention in Young v. State (1967) 249 Ind. 286, 231 N.E.2d 797 was deemed so fundamental to the concept of criminal justice as to require consideration. We feel compelled to follow the same course.
Allison argues that the determinate factor in our consideration is the manner in which the greater crime is charged in the affidavit. He asserts that the affidavit must include the element of 'great bodily harm or disfigurement' before aggravated assault and battery may be held to be a lesser included offense.
The State replies that even though the affidavit does not specifically allege great bodily harm or disfigurement, it contains a sufficient allegation that the defendant did 'feloniously . . . touch, beat, and strike' the victim.
The matter of lesser included offenses has proved extremely troublesome particularly with regard to the manner in which such may or may not be embraced within a particular criminal charge and with regard to disparity of the penalties imposable. Harrison v. State (1973 Ind.Ct.App.) 292 N.E.2d 612; Carter v. State (1972 Ind.Ct.App.) 291 N.E.2d 109. Without regard, however, to the technical subtleties of the doctrinal distinction between necessarily included lesser offenses and lesser possible offenses as discussed in those cases and elsewhere, we deem the issue before us to be soluble by resort to clear cut decisional precedent.
Allison was charged with assault and battery with intent to kill defined by § 10--401a as follows:
The essential elements are: (1) the unlawful touching (2) of another human being (3) in a rude, insolent or angry manner (4) with intent to kill. Reed v. State (1970) 255 Ind. 298, 263 N.E.2d 719.
To determine whether an offense is a necessarily lesser included offense, i.e., one which is necessarily committed if the greater offense charged has been committed and which lesser offense need not be specifically charged, Watford v. State (1957) 237 Ind. 10, 143 N.E.2d 405, we must look to the essential elements of each offense. Only two offenses are disclosed to be necessarily included in a charge of assault and battery with intent to kill--(1) assault and battery, and (2) assault.
Assault and battery is defined by IC 1971, 35--1--54--4, Ind.Ann.Stat. § 10--403 (Burns 1972 Supp.) as follows:
'Whoever in a rude, insolent or angry manner, unlawfully touches another, is guilty of an assault and battery, . . .'
The elements are: (1) the unlawful touching (2) of another human being (3) in a rude, insolent or angry manner.
The statute defining assault is IC 1971, 35--13--4--7, Ind.Ann.Stat. § 10--402 (Burns 1956).
'Whoever, having the present ability to do so, attempts to commit a violent injury upon the person of another is guilty of an assault, . . .'
The elements are: (1) the unlawful attempt coupled with (2) the present ability to commit a violent injury (3) an another human being. Although the elements of assault are phrased in a somewhat different manner than those of assault and battery or assault and battery with intent to kill, it has been long recognized that an assault is an attempted battery (assault and battery) and that every battery includes an assault. Perkins, Criminal Law, ch. 2, § 2, p. 106 (2nd Ed. 1969).
On the other hand, § 10--410 defines aggravated assault and battery as:
'Whoever intentionally or knowingly and unlawfully inflicts great bodily harm or disfigurement upon another person is guilty of aggravated assault and battery . . ..'
Froedge v. State (1968) 249 Ind. 438, 233 N.E.2d 631 interpreted the statute to include the following elements: (1) infliction of (a) great bodily harm or (b) disfigurement (2) intentionally or knowingly and unlawfully (3) upon another human being. The element 'great bodily harm or disfigurement' must be considered in the alternative and not in the conjunctive. Froedge v. State, supra, 233 N.E.2d at 636. Although the term 'disfigurement' has not been judicially defined in Indiana, it is not a technical word and in the context of the statute here concerned should be considered in its ordinary sense. See Froedge v. State, supra.
One Indiana decision construing the elements of the crime of malicious mayhem (IC 1971, 35--1--54--5, Ind.Ann.Stat. § 10--407 (Burns 1956)) which requires an intent to 'maim or disfigure' has by implication imposed a degree of permanency with respect to the injury inflected. Pierce v. State (1942) 220 Ind. 225, 41 N.E.2d 797. A pertinent definition of 'disfigurement' in its ordinary sense is consistent with a requirement of permanency and may be stated as in Rapp v. Kennedy (1968) 101 Ill.App.2d 82, 242 N.E.2d 11, 13:
'That 'which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, mishapen or imperfect or deforms in some manner."
The term 'great bodily harm' was defined in Froedge, supra, as follows:
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Roddy v. State
...anomalous concept of the "Possibly included" lesser offense crept into Indiana case law. See, e. g., Allison v. State (1973), 157 Ind.App. 277, 279, 299 N.E.2d 618, 620. This incongruous juxtaposition of terms "necessarily", "impossible", and "possibly" has contributed to the perplexing nat......
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...and weaknesses of the evidence, desire conviction for a lesser included offense. See Roddy v. State, supra; Allison v. State, (1973) 157 Ind.App. 277, 299 N.E.2d 618. It is also significant that while the legislature established the propriety of convictions for lesser included offenses, it ......
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