Carter v. State

Decision Date29 December 1972
Docket NumberNo. 372A114,372A114
Citation291 N.E.2d 109,155 Ind.App. 10,34 Ind.Dec. 533
PartiesWalter CARTER, Vernon Cole, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Appellate Court
Palmer K. Ward, Indianapolis, for appellants

Theodore L. Sendak, Atty. Gen., Robert E. Colker, Asst. Atty. Gen., for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY--This is an appeal by defendants-appellants, Walter Carter and Vernon Cole (Carter and Cole), who were charged by Indictment with Robbery By Putting In Fear and convicted of the lesser included offense of Theft From The Person of James E. Martin (Martin), both being sentenced for one to ten years terms. We affirm.

FACTS--On the evening of June 5, 1971, Martin accompanied Carter and Cole and an unidentified third party to various Indianapolis bars. After having several drinks, Carter and Cole asked Martin if he would like to go to an after-hours place, to which Martin consented. During trial, Martin described the subsequent events:

'Q. Where did you go?

A. We went west on New York Street and there they said, 'Well, we have to'--said, 'Up this alley is a shortcut', and we went up the alley and three quarters of the way through the alley I was robbed.

Q. Now, . . .

THE COURT: What happened?

A. I was robbed, beaten and robbed.

Q. Who went up the alley, when you say we?

A. Two two defendants (Carter and Cole), and their buddy, and myself.

Q. All right, and what happened in the alley?

A. I was beaten and robbed.

Q. And, can you tell us who did that?

A. Well, all three of them did, primarily, but the one that they didn't catch was the one that really done me in.

Q. All right, now, as to Mr. Carter and Mr. Cole, what did they do?

A. Well, they both struck me, and as a result of the injuries, I had to spend some time in the hospital.'

Martin further testified that the three men robbed him of approximately $65.00.

Soon after these events transpired, two officers of the Indianapolis Police Department travelling west on Michigan Street from Meridian saw Martin, bleeding from the face and holding his stomach, coming out of the alley east of Illinois Street. The officers stopped, and after Martin explained he had just been beaten and robbed by three men who were still in the alley, the police car, with Martin in the rear seat, entered the alley. There they observed three men standing who fled as the police car approached. Carter and Cole were apprehended and identified by Martin. The third man escaped. While one officer was handcuffing Cole, he stated that 'it was not my idea to rob that fellow. It was the other.' The officers recovered $23.00 from Carter and $20.00 from Cole.

Carter and Cole were charged by a Grand Jury Indictment with the crime of Robbery By Putting In Fear (Robbery herein). The indictment reads:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that WALTER CARTER and VARNON (sic) COLE on or about the 5th day of JUNE, A.D.1971, at and in the County of Marion and in the State of Indiana, did then and there unlawfully, feloniously, forcibly by violence and putting JAMES E. MARTIN Trial was to the court in October 26, 1971. Both men were found guilty of Theft From The Person (Theft herein) as a lesser included offense of the crime of Robbery.

in fear, take from the person and possession of the said JAMES E. MARTIN, money, then and there of the value of Sixty-five and 00/100 Dollars ($65.00), in lawful money, which property the said JAMES E. MARTIN then and there lawfully held in his possession, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.' (Emphasis supplied.)

ISSUES

ISSUE ONE.

Is the Indictment charging Carter and Cole with Robbery, under which they were convicted of the lesser included offense of Theft, fatally defective in that it failed to allege intent on their part to deprive the owner of the use or benefit of property (money), which is an essential element of the lesser included offense of Theft?

ISSUE TWO.

Was there sufficient evidence as to every element of the crime of Theft to sustain a conviction?

Carter and Cole allege that in order to convict a defendant of the crime of Theft, the Indictment must specifically charge all of the elements of the Offenses Against Property Act and that one element, to-wit, that the defendant intended to deprive the owner of the use or benefit of the owner's property, is missing.

The State replies that the crime of Theft is a necessarily lesser included offense in the crime of Robbery. The law does not require an indictment to charge every element of the offense in the exact words of the statute and a conviction may be sustained as the evidence demonstrates beyond a reasonable doubt that Carter and Cole did take money from Martin, thus depriving him of the use and benefit of his property.

Carter and Cole assert the evidence is insufficient because the State failed to prove there was any property in the possession of Carter and Cole which was taken as a result of the Robbery and that the amount alleged to have been taken is sheer speculation.

DECISION

ISSUE ONE--The Indictment charging Carter and Cole with Robbery under which they were convicted of the lesser included offense of Theft is not fatally defective for failing to specify the element of intent to deprive the owner of the use or benefit of property (money), which is an essential element of Theft.

The statute defining the crime of Theft (From The Person) is Ind.Ann.Stat. § 10--3030 (Burns Supp.1972), IC 1971, 35--17--5--3:

'10--3030. Theft in general.--A person commits theft when he (1) knowingly:

(a) obtains or exerts unauthorized control over property of the owner; or

(e) obtains by threat control over property of the owner * * *; or

(g) * * *; and

(2) either:

(a) intends to deprive the owner of the use or benefit of the property; or

(c) uses, conceals or abandons the property in such manner as knowingly to deprive the owner of such use or benefit; or

(d) uses, conceals or abandons the property knowing such use, concealment or abandonment probably will deprive the owner of such use or benefit.' (Emphasis supplied.)

The Indiana statute concerned with lesser included offenses is Ind.Ann.Stat. § 9--1817 (Burns 1956), IC 1971, 35--1--39--2. 'The beginning point is the statute * * *.' Hitch v. State (Ind.1972) 284 N.E.2d 783. It provides:

'9--1817. One offense included in another. In all other cases, the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or affidavit. (Acts 1905, ch. 169, § 272, p. 584.)' (Emphasis supplied.)

(Herein § 1817).

Note the words 'necessarily included.'

The purpose of § 1817 is to authorize conviction of a necessarily lesser included offense where the indictment or affidavit specifically charges a greater offense. Burnett v. State (1954) 233 Ind. 651, 122 N.E.2d 468; Hobbs v. State (1969) 253 Ind. 195, 252 N.E.2d 498; Watford v. State (1957) 237 Ind. 10, 143 N.E.2d 405; West v. State (1950) 228 Ind. 431, 92 N.E.2d 852. The necessarily lesser included offense need not be charged as such in the indictment or affidavit in order to authorize a conviction. Where the evidence presented is sufficient to establish a necessarily lesser included crime, 9--1817 authorizes conviction of the necessarily lesser included offense. Watford v. State, supra; Burnett v. State, supra; West v. State, supra; Kleopfer v. State (1928) 200 Ind. 287, 163 N.E. 93.

The defendant may be found guilty of any necessarily lesser included offense in the greater crime charged without such lesser offense being stated in a separate count in the indictment or affidavit. Watford v. State, supra; Burnett v. State, supra; West v. State, supra; Kleopfer v. State, supra. Moreover, the lesser offense must be such that it is impossible to commit the greater offense as charged in the indictment or affidavit, without first having committed the lesser offense. Hatfield v. State (1961) 241 Ind. 225, 171 N.E.2d 259; Young v. State (1967) 171 N.E.2d 231 N.E.2d 797; Hobbs v. State (1969) 253 Ind. 195, 252 N.E.2d 498; Thomas v. State (Ind.1970) 261 N.E.2d 588.

The recognized test has been that to constitute a lesser included offense, all the elements of the lesser offense must be contained in the greater offense charged in the indictment or affidavit which, in addition, contains other elements not a part of the lesser offense. Watford v. State, supra; Hobbs v. State, supra; Hatfield v. State, supra; Young v. State, supra; Thomas v. State, supra.

However, our Supreme Court in Hash v. State (Ind.1972) 284 N.E.2d 770, seems to have qualified the above tests by saying:

'The foregoing test (as stated in Hobbs, supra), however, must not be administered merely by applying the elements of the respective crimes as defined by the statutes; but rather, it is also necessary to look to the charging affidavit or indictment to see if a lesser offense is necessarily included in the greater one, as charged. * * * In addition to the statutes, then, we must also look to the wording of the offense charged in each case to determine what lesser offenses, if any, are included.' (Emphasis supplied.)

We do not interpret the italicized language used by Justice Prentice as overruling by implication the cases cited above which have interpreted § 1817 to mean that an accused may be convicted of a necessarily included lesser offense of a greater offense charged provided the lesser offense includes some but not all identical elements of the greater one and if it is impossible to commit the greater offense without having committed the lesser one. Looking 'to the wording of the offense charged' in the indictment or affidavit does not create the need for the same specificity if only the...

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