Hatfield v. State
| Citation | 171 N.E.2d 259,241 Ind. 225 |
| Decision Date | 19 January 1961 |
| Docket Number | No. 29915,29915 |
| Parties | Donald HATFIELD, Martin Ray West, Appellants, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
John G. Bunner, Theodore Lockyear, Rice, Cheatham & Van Stone, Evansville, for appellants.
Edwin K. Steers, Atty. Gen., Richard M. Givan, Asst. Atty. Gen., Richard C. Johnson, Deputy Atty. Gen., for appellee.
Appellants were charged with the crime of automobile banditry under Acts 1929, ch. 54, § 3, p. 136, being § 10-4710, Burns' 1956 Replacement, tried by jury, found guilty as charged and sentenced to the Indiana State Prison for terms of 12 and 15 years, respectively.
The determinative issue here presented is the trial court's refusal to give certain tendered instructions relating to lesser offenses allegedly included in the crime of automobile banditry. Tendered Instruction No. 1 would have instructed the jury that the offense of second-degree burglary 1 is included in the offense of automobile banditry.
Tendered Instruction No. 2 would have instructed the jury that the offense of entering a house to commit a felony 2 is included in the offense of automobile banditry.
Tendered Instruction No. 3 would have instructed the jury that the offense of third-degree burglary1 is included in the offense of automobile banditry as defined in § 10-4710, supra.
The affidavit upon which appellants were tried and convicted, omitting formal parts, is as follows:
'Don Miller being duly sworn upon his oath says that Donald Hatfield and Martin Ray West on or about the 4th day of July, A.D. 1959, at said County and State as affiant verily believes did then and there unlawfully, feloniously and burglariously, break and enter into the building and structure, owned and occupied by Raymond Wood, doing business as the Weeping Willow Tavern, a sole proprietorship, then and there situate at 2112 S. Weinbach Avenue, City of Evansville, County of Vanderburgh, State of Indiana, which said building and structure was not a place of human habitation, with the intent to commit a felony therein, to-wit: unlawfully and feloniously to take, steal and carry away the goods, chattels and personal property of the said Raymond Wood, doing business as the Weeping Willow Tavern, a sole proprietorship, and the said Donald Hatfield and Martin Ray West, at the said time and place and on and near the premises wherein said burglary was so committed by them, had (as amended) an automobile, to-wit: a motor vehicle and automobile by the use of which they escaped and intended and attempted to escape.'
Appellants assert that since the principal crime charged in the affidavit was that of automobile banditry it was error for the court not to give their tendered instructions to the jury on included offenses. This then presents the question: Are Second and Third Degree Burglary and Entering a House to Commit a Felony included in the offense of automobile banditry?
In Mahoney v. State, 1932, 203 Ind. 421, 180 N.E. 580; Ramsey v. State, 1932, 204 Ind. 212, 183 N.E. 648; and Witt v. State of Indiana, 1933, 205 Ind. 499, 185 N.E.2d 645, the court was guided by specific statutory limitations as expressed in §§ 5 and 6 of ch. 54 of the Acts of 1929. These sections were specifically repealed by ch. 85 of the Acts of 1935.
By the specific repeal of §§ 5 and 6, supra, the Legislature evidenced a clear intent to make the provisions of Acts 1905, ch. 169, § 272, p. 584, being § 9-1817, Burns' 1956 Replacement, applicable to all crimes defined in ch. 54 of the Acts of 1929. This section provides:
'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.'
In the absence of any specific statutory provision to the contrary, we are here guided by the general statute pertaining to included offenses--s 9-1817, supra.
The test for included offenses under § 9-1817, supra, was reaffirmed in Watford v. State, 1957, 237 Ind. 10, at page 15, 143 N.E.2d 405, at page 407, as follows:
In Mims et al. v. State, 1957, 236 Ind. 439, 140 N.E.2d 878, the appellant contended that the offense of grand larceny was necessarily included in the offense of automobile banditry as defined in § 10-4710, supra. In that case we recognized that other felonies, which were the basis for the charge of automobile banditry, could be considered as included offenses within the principal charge of automobile banditry when, at page 442 of 236 Ind., at page 879 of 140 N.E.2d, we said:
'Since * * * a person charged with automobile banditry embodying the charge of larceny could be found guilty of the lesser included offense of larceny, it...
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Hester v. State
... ... at 370, 180 N.E. at 284 ... In view of decisions of this Court holding that one might be acquitted of a charge of automobile banditry and yet convicted of the collateral offense alleged in the charging affidavit or indictment (Hatfield, West v. State (1961), 241 Ind. 225, 171 N.E.2d 259), and their holdings that felony murder, although designated as first degree murder, does not carry with it charges of second degree murder or manslaughter (Dull v. State (1962), 242 Ind. 633, 180 N.E.2d 523; Barker v. State (1958), 238 Ind. 271, ... ...
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Lindsey v. State, 30450
... ... Parenthetically, we note that neither appellant, through the facilities of the penitentiary 'writ room,' in preparing his pro se pleadings, nor his counsel on this appeal, has submitted any authority in support of this contention ... However, we cite the case of Hatfield; West v. State (1961), 241 Ind. 225, 171 N.E.2d 259, in which the sentencing of appellant on both counts was held to be erroneous, since second degree burglary was considered to be an included offense in auto banditry, as the latter crime was then proscribed in Sec. 10-4710, Burns' Ind.Stat. (1956 ... ...
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Dolan v. State
... ... Watford v. State, supra (237 Ind. 10, 143 N.E.2d 405); Hobbs v. State, supra (253 Ind. 195, 252 N.E.2d 498); Hatfield v. State, supra (241 Ind. 225, 171 N.E.2d ... 259); Young v. State, supra (249 Ind. 286, 231 N.E.2d 797); Thomas v. State, supra (261 N.E.2d 588) ... However, our Supreme Court in Hash v. State (Ind.1972) (258 Ind. 692) 284 N.E.2d 770, seems to have qualified the above tests by saying: ... 'The ... ...
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Harrison v. State
...the relatively insignificant 'greater' offense of having an automobile at the ready for purposes of escape. See Hatfield v. State (1961) 241 Ind. 225, at 230, 171 N.E.2d 259 and Chizum v. State (1932) 203 Ind. 450, 180 N.E. 674. Yet the fact that we cannot rationalize the reason stated in L......