Hash v. State

Decision Date06 July 1972
Docket NumberNo. 1269S296,1269S296
Citation284 N.E.2d 770,31 Ind.Dec. 647,258 Ind. 692
PartiesGary HASH, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

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 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 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 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 defendant is generally entitled to an instruction covering all offense that are necessarily included in the offense charged and a submission of forms for all possible verdicts under the offense charged. Sullivan v. State (1957), 236 Ind. 446, 139 N.E.2d 893. The test for determining what offenses are included has recently been reiterated in Hobbs v. State (1969), 253 Ind. 195, 252 N.E.2d 498, wherein we reaffirmed the test from Watford v. State (1957), 237 Ind. 10, 143 N.E.2d 405, as follows:

"* * * to be necessarily included in the greater offense, the lesser offense must be such that it is impossible to commit the greater without first having committed the lesser. This being true, the court is compelled to hold that, if a party is charged with a given crime, he can not be convicted of another crime of lesser magnitude under the provisions of section 2148, supra, ( § 9--1817, Burns' 1956 Replacement), unless a conviction of the crime charged necessitates proof of all the essential elements of the lesser offense, together with the added element which makes the differences in the two offenses." 252 N.E.2d at 500.

The foregoing test, 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 Sullivan v. State (supra) we observed that it was quite apparent in a charge of homicide where death is alleged to have been caused by poisoning, a charge of the lesser offense of assault and battery would not be included. 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.

Applying only the foregoing test to the circumstances at bar, it would appear that the defendant was entitled to his tendered instruction and the misdemeanor verdict form under Burns § 9--1816 and § 9--1817, IC 35--1--39--1, 35--1--39--2, Acts 1905, ch. 169, § 271 and § 272, as follows:

'Upon an indictment or affidavit for an offense consisting of different degrees, the jury may find the defendant not guilty of the degrees charged in the indictment or affidavit, and guilty of any degree inferior thereto or of an attempt to commit the offense.'

'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.'

Defendant argues that simple theft is necessarily an included offense in the charged offense of robbery, and we cannot dispute his contention when viewed both in the pale of the statute and that of the charging affidavit. An additional factor, however, must logically come into play, one that does not appear to have been recently considered, at least in this state, although a similar situation was before this Court and determined consistently with our holding herein in the case of Cole v. State (1921), 192 Ind. 29, 134 N.E. 867. When we view the evidence in the case at bar, we at once must recognize that the only evidence of a 'taking' was that the money and French bills were taken from the person of Williamson. The only testimony to the contrary was that of the defendant, who testified that he found the French bills, which would be no offense. The jury would have been justified in finding for the defendant upon his testimony, or, as it did, for the State upon Williamson's testimony that the items were taken from his person. It could not, however, disbelieve the testimony of both Williamson and the defendant and speculate upon a third factual situation upon which there was no evidence. This is an altogether different situation than one where the...

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