Hammer v. State, No. 975S228

• Docket Nº: No. 975S228
• Citation: 265 Ind. 311, 354 N.E.2d 170
• Case Date: September 15, 1976
• Court: Supreme Court of Indiana

Page 170

354 N.E.2d 170 265 Ind. 311 Theodore W. E. HAMMER, Appellant,
v.
STATE of Indiana, Appellee. No. 975S228. Supreme Court of Indiana. Sept. 15, 1976.

Page 171

John D. Clouse, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., K. Richard Payne, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Theodore W. E. Hammer, was charged with armed robbery, Ind.Code § 35--13--4--6 (Burns 1975), and kidnapping, Ind.Code § 35--1--55--1 (Burns 1975). After a trial by jury, he was found guilty of both charges. He was sentenced to ten years for armed robbery and to life imprisonment for kidnapping. He filed a timely motion to correct errors which was overruled.

On appeal, he raises five issues for review: (1) whether appellant was denied equal protection of the law when the [265 Ind. 312] court denied his Petition of Election to be treated as a drug abuser, pursuant to Ind.Code § 16--13--6.1--16 (Burns 1976 Supp.), because he had committed a crime of violence which is a statutory exception; (2) that the court erred in giving, on its own motion, an instruction which included the sentence '(By) the non-enforcement of the law and its penalties in all criminal cases where it is shown by the evidence, beyond a reasonable doubt, to have been violated, contempt for the law is bred among the very class that it is intended to restrain,' when the idea of classes is repugnant to the Constitution; (3) that the court erred in giving the jury a verdict form for armed robbery which provided for the jury's assessing the punishment within the range of ten to thirty years, without the benefit of a pre-sentence report; (4) that the court erred in refusing to give two instructions that the jury should give the benefit of the doubt to the defendant when the evidence was conflicting and when either of two interpretations was reasonable; (5) that the court erred in refusing to give three instructions on offenses which appellant argues are lesser included offenses of kidnapping, namely: assault, assault and battery, and assault and battery with intent to commit a felony.

The evidence was that appellant, whom the victim had seen and talked to briefly on three occasions, robbed a service station attendant using a shotgun and a knife and threatening the attendant. After robbing him, he kept the shotgun on the attendant, told him to close up and drive appellant where he wanted to go. In the car, during the twenty minute ride, appellant kept poking the attendant in the ribs with the barrel of the gun. As directed, the attendant let appellant out in a remote area, waited thirty minutes, and then drove home. He was able to identify a photograph of appellant a week after the crime.

Page 172

(1) Appellant argues that Ind.Code § 16--13--6.1--16 is unconstitutional. That statute reads:

'A drug abuser charged with or convicted of a crime is eligible to elect treatment under the supervision of the [265 Ind. 313] department instead of prosecution or imprisonment, as the case may be, unless (a) the crime is a crime of violence, (b) the crime is that of selling a narcotic or dangerous drug, (c) the drug abuser has a record of two or more prior convictions of a crime of violence, (d) other criminal proceedings, not arising out of the same incident, alleging commission of a felony are pending against the drug abuser, or (e) the drug abuser is on probation or parole and the appropriate parole or probation authority does not consent to that election, or...