Brown v. State

Decision Date17 September 1973
Docket NumberNo. 872S109,872S109
Citation301 N.E.2d 189,261 Ind. 169
PartiesSamuel Henry BROWN, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Harriette Bailey Conn, Public Defender, John R. Gerbracht, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

This is an appeal from the denial of post-conviction relief. Defendant (Appellant) had been convicted of murder in the second degree in 1968 and sentenced to life imprisonment under the statute then in effect (Acts of 1905, ch. 169, § 350, 1956 Repl.Burns' Ind.Stat.Ann. § 10--3404), IC 1971, 35--1--54--1 which was as follows:

'Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and, on conviction, shall be imprisoned in the state prison during life.'

The penalty then prescribed for murder in the first degree was death or life imprisonment. We disregard the provision for the death penalty, however, in view of Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 and Adams v. State (1972), Ind., 284 N.E.2d 757.

It is the defendant's contention that inasmuch as murder in the second degree is a lesser included offense of murder in the first degree, the penalty for the former must be less than for the latter and that to hold otherwise violates Article I, Section 16 of the Constitution of Indiana and Amendment VIII of the Constitution of the United States, providing that all penalties shall be proportioned to the nature of the offense.

To support his position, Defendant relies upon the following quotation from Heathe v. State (1971), Ind., 274 N.E.2d 697:

'* * * The constitutional mandate that 'all penalties shall be proportioned to the nature of the offense' requires that the maximum for a lesser offense be less than the maximum for a higher offense.' (Emphasis ours)

However, such is not the rule of that case. Heathe had been convicted of the offense of entering to commit a felony, a lesser included offense of second degree burglary. He had been sentenced to imprisonment for a period of from one to ten years, the penalty provided by statute for entering to commit a felony. We remanded the case with instructions to modify the sentence by reducing the maximum to five years, which is the same as, not less than, the maximum provided for the greater offense.

The constitutionality of sentences for lesser included offenses was first passed upon in this state in Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815. In that case we held the following:

'* * * We do hold, however, that the legislature may not, consistent with the commands of the State and Federal Constitutions, provide a punishment for a lesser included offense which is greater in years on the face of the statute than the greater offense.' (Emphasis ours) 251 Ind. 250 at 253, 240 N.E.2d 817.

The rule in Dembowski has been followed in the following cases in addition to Heathe (supra): Willoughby v. Phend (D.C.Ind.1969), 301 F.Supp. 644; Hobbs v. State (1969), 253 Ind. 195, 252 N.E.2d 498; McDougall v. State (1970), 254 Ind. 62, 257 N.E.2d 674; Sargeant v. State (1970), 255 Ind. 252, 263 N.E.2d 525; Woods v. State (1970), 255 Ind. 483, 265 N.E.2d 244; MacTate v. State (1971), 256 Ind. 55, 267 N.E.2d 76; Jackson v. State (1971), Ind., 275 N.E.2d 538; Easton v. State (1972), Ind., 280 N.E.2d...

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15 cases
  • Cobb v. State, 778S142
    • United States
    • Indiana Supreme Court
    • November 7, 1980
    ...than the greater offense, but that a lesser-included crime may have a penalty as great as the greater crime. See Brown v. State, (1973) 261 Ind. 169, 301 N.E.2d 189; Emery v. State, (1973) 261 Ind. 211, 301 N.E.2d 369; Dembowski v. State, (1968) 251 Ind. 250, 240 N.E.2d 815. The penalty in ......
  • Abel v. State, 1--175A15
    • United States
    • Indiana Appellate Court
    • September 16, 1975
    ...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 ......
  • State v. Gresham
    • United States
    • Nebraska Supreme Court
    • July 18, 2008
    ...crimes and offense may be lesser-included whether penalty is less or same). For completeness, we note that in Brown v. State, 261 Ind. 169, 301 N.E.2d 189 (1973), the Indiana Supreme Court held that the penalty for a lesser-included offense is not required to be less than that for the great......
  • Millar v. State, 680S187
    • United States
    • Indiana Supreme Court
    • March 17, 1981
    ...less than the maximum for a higher offense." An argument identical to the appellant's argument here was considered in Brown v. State, (1973) 261 Ind. 169, 301 N.E.2d 189. In Brown, supra, the appellant had been convicted of second-degree murder and sentenced to life imprisonment. Brown cite......
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1 books & journal articles
  • The Abuse of Animals as a Method of Domestic Violence: the Need for Criminalization
    • United States
    • Emory University School of Law Emory Law Journal No. 63-5, 2014
    • Invalid date
    ...V. 246. Ind. Code § 35-46-3-12(b)(2) (2012 & Supp. 2014).247. See Rector v. State, 339 N.E.2d 551, 554 (Ind. 1976); Brown v. State, 301 N.E.2d 189, 190 (Ind. 1973) ("[T]he legislature may not, consistent with the commands of the State and Federal Constitutions, provide a punishment for a le......

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