Gregory v. State, 171S1
| Decision Date | 09 January 1973 |
| Docket Number | No. 171S1,171S1 |
| Citation | 291 N.E.2d 67,259 Ind. 652,34 Ind.Dec. 593 |
| Parties | Eddie Dean GREGORY, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Palmer K. Ward, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Michael Schaefer, Deputy Atty. Gen., for appellee.
Defendant (Appellant) was charged with Robbery in violation of Acts of 1941, ch. 148, § 6, Burns Ind.Stat.Ann. § 10--4101 (1956 Repl.), IC 1971, 35--13--4--6. At the close of the State's case in chief, the trial judge directed a verdict of acquittal as to robbery, and the case was submitted to the jury upon the included theft offenses. He was convicted of theft, not from the person, of a sum less than $100.00, in violation of Acts of 1963 (Spec.Sess.), ch. 10, § 3, Burns Ind.Stat.Ann. § 10--3030 (1956 Repl.), IC 1971, 35--17--5--3 and Acts of 1963 (Spec.Sess.), ch. 10, § 12, Burns Ind.Stat.Ann. § 10--3039, IC 1971, 35--17--5--12, as a lesser included offense, and sentenced to imprisonment for not less than one nor more than five years and fined $500.00 and costs.
This appeal challenges the verdict as being contrary to law in that (1) the affidavit contains no allegation that the defendant 'intended' to deprive the owner of the money allegedly taken, whereas such intent is an essential element of the crime, as defined by the statutes; and in that (2) the affidavit alleged that the money taken was the property of George Robertson, whereas the evidence disclosed that it, in fact, belonged to one Carolyn Alexander. The issues will be treated in that order.
The evidence, when viewed most favorably to the State, disclosed that the prosecuting witness, George Robertson, was approached, as he entered his automobile, first by Alfred Henry, a co-defendant, and immediately thereafter by the defendant, both of whom requested a ride. Henry was in the vehicle with Robertson, but the defendant was standing beside the vehicle. Henry brandished a pistol and said, 'Hold it George, I don't want to hurt you.' Whereupon, Robertson said, 'Awe, man, what's this?' Henry said, 'You know what it is,' and began going through Robertson's pockets and asked where it was. Robertson replied, 'Where's what at?', to which Henry answered, 'The drugs.' The defendant, during this time, was issuing instructions to Henry and said, 'Well, have he got any money.' Henry continued his search of Robertson, and found and took $106.00 from his pocket. Thereupon, Henry exited from the automobile and both he and the defendant ran away.
(1) Although the defendant, under this proposition, does not make a frontal attack, his argument is an oblique charge that theft is not an included offense in a charge of robbery, in that the 'intent to deprive' is specified by statute as an element of theft but not as an element of robbery. We hold that in this case theft was a properly included offense in the robbery charged and that the failure to specifically allege an 'intent to deprive' in the charging affidavit did not preclude a verdict of guilty of such lesser included offense.
Although the statute defining robbery does not use the word 'intent', it is there by irrefutable inference. In Indiana, all crimes are statutory, but this does not render merely malum prohibitum those crimes that are, and always were, malum in se. That which is merely malum prohibitum, i.e. an offense only because prohibited by statute, does not require intent and knowledge, unless specified by the prohibiting statute. However, that which is malum in se, i.e. inherently and naturally evil as adjudged by the senses of a civilized society, is wrong and criminal by reason of such knowledge or intent; and such crimes taken over from the common law,--the traditional crimes, including robbery and theft--have always included the mens rea as an element. It follows, and has been so held, that the omission of such words as 'knowingly' and 'intent' from a statute defining a crime is not conclusive on whether or not guilty knowledge is an essential element of such crime. Whether or not criminal intent is an element of a statutory crime is a matter of statutory construction and must be determined in view of the legislative intent. 22 C.J.S. Criminal Law § 30.
The statute prohibiting robbery, as well as the offense against property statutes, as they apply to thefts, are adoptive of the common law. Both require criminal intent and knowledge, whether specified by the wording of the statute or not.
Was the affidavit, set out below in pertinent parts adequate?
'BE IT REMEMBERED, That, on this day before me, NOBLE R. PEARCY Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came GEORGE ROBERTSON, JR. who, being duly sworn, upon his oath says that ALFRED HENRY and EDDIE DEAN GREGORY on or about the 8th day of APRIL, A.D....
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...or by putting in fear, is guilty of robbery.' IC 35--13--4--6, Ind.Ann.Stat. § 10--4101 (Burns 1956). As stated in Gregory v. State (1973), Ind., 291 N.E.2d 67, 69: 'The intent requisite to the crime of theft then, is also requisite to the crime of robbery.' When Mayes was previously convic......
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...a crime had been held to be not conclusive on whether guilty knowledge is an essential element of such crime. Gregory v. State (1973), 259 Ind. 652, 655, 291 N.E.2d 67, 68. In considering whether "intent to deprive" was an element of robbery although the statute did not mention it as such, ......
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