Green v. State
| Decision Date | 17 May 1972 |
| Docket Number | No. 371S88,371S88 |
| Citation | 282 N.E.2d 548,258 Ind. 481 |
| Parties | Helen P. GREEN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Frank E. Spencer, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Darrell K. Diamond, Deputy Atty. Gen., for appellee.
On March 9, 1970, appellant was charged by indictment with,
'. . . the crime of theft in that she knowingly, unlawfully and feloniously obtained and exerted unauthorized control over property . . . to wit: Money . . ., then and there intending to deprive said JOHN IRVINE d/b/a JOHN IRVINE STUDIOS permanently on the use and benefit of said property, then and there being contrary to the form of the statute . . .'
The indictment was thus predicated upon IC 1971, 35--17--5--3(1)(a), Burns' Ind.Stat.Ann. § 10--3030(1)(a) (1971 Supp.), which provides that theft is committed when a person knowingly 'obtains or exerts unauthorized control over property of the owner . . ..'
The Indiana Offenses Against Property Act, IC 1971, 35--17--5--3, Burns' Ind.Stat.Ann. § 10--3030 (1971 Supp.), provides that:
'A person commits theft when he (1) knowingly: (a) obtains or exerts unauthorized control over property of the owner; or
(b) obtains by deception control over property of the owner or a signature to any written instrument; or
(c) alters, replaces, transfers or substitutes without authorization of the owner any label, price tag or price marking upon any property or merchandise displayed or offered for sale by any mercantile establishment . . .
or
(d) transfers without authorization of the owner any property or merchandise displayed or offered for sale by any mercantile establishment, . . . from the package, bag or container in or on which such product or merchandise is displayed, to any other package, bag, or container; or
(f) obtains control over stolen property knowing the property to have been stolen by another, which knowledge may be inferred from the possession of such stolen property, wherever the theft may have occurred; or
(g) brings into this state property over which he has obtained control by theft, wherever the theft may have occurred; . . .'
Appellant was tried by the court on November 13, 1970, convicted and sentenced on November 20, 1970, '. . . to the Indiana Women's Prison for not less than One (1) nor more than Ten (10) years and fined $100.00 and Costs.'
Taking the evidence most favorable to the state of Indiana, it appears that the defendant, in her capacity as bookkeeper, obtained the signature of her employer to a payroll check made to her order and then raised the amount of the check to a sum greater than its original amount.
The principal contention raised is that the evidence indicated that appellant was guilty only of theft by deception and hence, the evidence was insufficient or showed a variance since the defendant was found guilty of the offense of exerting 'unauthorized control over property . . . to wit: Money . . .' while the evidence related to the alteration of a check to gain possession of the money.
The first part of the statute in question does not limit the means or method by which unauthorized control may be obtained. We can conceive of many situations in which some element of deception may be involved, such as picking pockets or distracting attention at the time control is gained. In our opinion, the prosecuting attorney has the option of determining whether or not he desires to make the charge specific under some specified section of the statute, or to make the charge general in nature when the evidence is not certain as to the methods used to gain control. The broadness of Paragraph (a) is no greater than the statute which originally defined larceny, or its definition under the common law.
We do not have here a narrow charge in which the verdict was too broad as in the case of Lawrence v. State (1968), 250 Ind. 161, 235 N.E.2d 198. In that case the appellant was charged narrowly with obtaining property by deception. The verdict which the jury brought in found the appellant guilty of...
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