Hash v. State, No. 1269S296

Docket NºNo. 1269S296
Citation284 N.E.2d 770, 31 Ind.Dec. 647, 258 Ind. 692
Case DateJuly 06, 1972

Page 770

284 N.E.2d 770
258 Ind. 692
Gary HASH, Appellant,
v.
STATE of Indiana, Appellee.
No. 1269S296.
Supreme Court of Indiana.
July 6, 1972.

[258 Ind. 694]

Page 771

William T. Hornaday, Bloomington, for appellant.

Theodore L. Sendak, Atty. Gen., of Indiana, Robert A. Zaban, Deputy Atty. Gen., for appellee.

PRENTICE, Justice.

The defendant (appellant) was charged with robbery under 1956 Repl.Burns Ind.Stat.Ann. § 10--4101, IC 1971 § 35--13--4--6, Acts of 1941, ch. 148, § 6, he was convicted in a trial by jury of Theft and sentenced to imprisonment for not less than one nor more than ten years and disfranchised. His appeal presents two questions for review: (1) the sufficiency of the evidence and (2) refusal of the trial court to give a tendered instruction relative to a lesser included offense and failure of the trial court to include a verdict form upon the lesser included offense.

(1) The evidence, viewed most favorably to the State, supports the following circumstances. The prosecuting witness, Gary Williamson, was driving an automobile alone in the city of Bloomington. The defendant was driving an automobile in which there were several young men companions as passengers. Williamson made several attempts to pass the defendant, but upon each occasion, the defendant pulled

Page 772

his vehicle to the left in front of Williamson and blocked his way. Ultimately, the defendant blocked the way in such a manner as to require Williamson to stop. Some words were exchanged and one of the passengers in the defendant's automobile got out, and as Williamson attempted again to pass, this person kicked the right rear fender of his automobile. Williamson completed the passing operation but then stopped, alighted, saw that his vehicle was damaged and walked a short distance back to the defendant's automobile to demand an explanation and to obtain the vehicle's license number. The defendant alighted from his automobile and struck Williamson in the face. A brief fight ensued, in the course of which the defendant knocked Williamson to the ground and demanded his money and thusly obtained from him approximately $20.00 [258 Ind. 695] in U.S. currency and two one-hundred franc French bills. When apprehended later in the evening, the defendant had the French bills upon his person.

At the trial, the defendant admitted having had a fight with Williamson and having the French bills upon his person when arrested. He denied taking anything from Williamson, however, and testified that after he had knocked Williamson down, Williamson got to his feet and ran away, and that as he (the defendant) walked a short distance to return to his automobile, he found the French bills lying upon the ground.

We hold the above evidence sufficient to sustain the conviction of theft from the person of Williamson, under Burns Ind.Stat.Ann. § 10--3030, IC 1971, 35--17--5--3, Acts of 1963, Spec.Sess. ch. 10, § 3 and the penalty provisions thereof, being Burns 10--3039(5)(e), IC 1971, 35--17--5--12(5)(e).

When the sufficiency of the evidence is raised as an issue on appeal, this Court will consider only that evidence most favorable to the State along with all logical and reasonable inferences that may be drawn therefrom. Fuller v. State (1971), Ind., 271 N.E.2d 720; Gibson v. State (1971), Ind.,271 N.E.2d 706; Rusher v. State (1971), Ind., 270 N.E.2d 748. Conviction will be affirmed if, from that viewpoint, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Fuller v. State (supra); Gibson v. State (supra); Taylor v. State (1971), Ind., 267 N.E.2d 383. This Court on appeal will not weigh the evidence nor determine the credibility of witnesses. Cravens v. State (1971), Ind., 275 N.E.2d 4; Potter v. State (1971), Ind., 274 N.E.2d 699; Fuller v. State (supra).

(2) The defendant's second proposition presents a novel and bona fide question but we believe it also to be without merit. The court instructed upon the doctrine of included offenses and included its instruction No. 8, advising of the lesser included offense of theft and the penalty therefor, if [258 Ind. 696] from a person, which offense we shall hereinafter refer to as 'theft from the person.' The penalty therefor being prescribed by Burns § 10--3039(5)(e), IC 35--17--5--12(5)(e). The defendant, however, maintains that he was also entitled to an instruction upon the penalty provided by Burns § 10--3039(1), IC 35--17--5--12(1), which provides the penalty for theft not from the person (hereinafter called simple theft). The only evidence of the value of the property taken from Williamson placed it at less than $100.00; hence, if the defendant were entitled to an instruction upon simple theft, as an offense included in robbery and theft from the person, he would also have been entitled to the submission of the 'lesser penalty' verdict forms.

It is not questioned that a...

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101 practice notes
  • Robinson v. State, No. 2-1072A80
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1974
    ...was no error in giving instructions to that effect. (Id. at 37, 134 N.E. at 870.)' In the recent case of Hash v. State (1972), Ind., 284 N.E.2d 770, 31 Ind.Dec. 647, the defendant was charged with robbery and convicted of the lesser offense of theft from the person. He complained, on appeal......
  • O'Conner v. State, No. 2-378A99
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1978
    ...O'Conner guilty of voluntary manslaughter. This conclusion is based on the rule enunciated by our Supreme Court in Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d It is error to give an instruction upon an issue if there is no evidence to support it. Lamb v. York, (1969) 252 Ind. 252, 247 N.......
  • Fleenor v. State, No. 1184
    • United States
    • Indiana Supreme Court of Indiana
    • October 13, 1987
    ...N.E.2d 526; (3) whether the substance of the tendered instruction is covered by other instructions which are given, Hash v. State (1972), 258 Ind. 692 284 N.E.2d Richey v. State (1981), Ind., 426 N.E.2d 389. Tendered Instruction No. 3 is set forth here: "In determining whether or not to rec......
  • Roddy v. State, No. 3-378A75
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 1979
    ...the allegations of fact contained in the charging instrument. Lawrence v. State (1978), Ind., 375 N.E.2d 208, 212; Hash v. State (1972), 258 Ind. 692, 696-97, 284 N.E.2d 770, 773; Sullivan v. State (1957), 236 Ind. 446, 451, 139 N.E.2d 893, 895; House v. State (1917), 186 Ind. 593, 596, 117......
  • Request a trial to view additional results
101 cases
  • Robinson v. State, No. 2-1072A80
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1974
    ...was no error in giving instructions to that effect. (Id. at 37, 134 N.E. at 870.)' In the recent case of Hash v. State (1972), Ind., 284 N.E.2d 770, 31 Ind.Dec. 647, the defendant was charged with robbery and convicted of the lesser offense of theft from the person. He complained, on appeal......
  • O'Conner v. State, No. 2-378A99
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1978
    ...O'Conner guilty of voluntary manslaughter. This conclusion is based on the rule enunciated by our Supreme Court in Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d It is error to give an instruction upon an issue if there is no evidence to support it. Lamb v. York, (1969) 252 Ind. 252, 247 N.......
  • Fleenor v. State, No. 1184
    • United States
    • Indiana Supreme Court of Indiana
    • October 13, 1987
    ...N.E.2d 526; (3) whether the substance of the tendered instruction is covered by other instructions which are given, Hash v. State (1972), 258 Ind. 692 284 N.E.2d Richey v. State (1981), Ind., 426 N.E.2d 389. Tendered Instruction No. 3 is set forth here: "In determining whether or not to rec......
  • Roddy v. State, No. 3-378A75
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 1979
    ...the allegations of fact contained in the charging instrument. Lawrence v. State (1978), Ind., 375 N.E.2d 208, 212; Hash v. State (1972), 258 Ind. 692, 696-97, 284 N.E.2d 770, 773; Sullivan v. State (1957), 236 Ind. 446, 451, 139 N.E.2d 893, 895; House v. State (1917), 186 Ind. 593, 596, 117......
  • Request a trial to view additional results

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