Heflin v. State, No. 776

• Docket Nº: No. 776
• Citation: 370 N.E.2d 895, 267 Ind. 427
• Case Date: December 27, 1977
• Court: Supreme Court of Indiana

Page 895

370 N.E.2d 895 267 Ind. 427 Frederick HEFLIN, Appellant,
v.
STATE of Indiana, Appellee. No. 776 S 232. Supreme Court of Indiana. Dec. 27, 1977.

[267 Ind. 428]

Page 896

Paul T. Cholis, South Bend, for appellant.

Theo. L. Sendak, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

This is an appeal from a conviction of armed robbery. Appellant was sentenced to a determinate term of 15 years. The record shows that the appellant and three other men entered Little Johnny's Cigar Store in South Bend, Indiana, on January 8, 1975. The men were wearing ski masks and were armed with a pistol and a shotgun. An information was filed and an arrest warrant was issued on January 13, 1975. The warrant was not served until October 31, 1975, even though the appellant was confined in the St. Joseph County Jail from May 2, 1975, to July 18, 1975. The appellant was convicted of a federal offense and was removed to federal prison. The State filed a detainer on July 25, 1975, while the appellant was incarcerated in federal prison.

On September 5, 1975, the appellant filed a request for an early trial. He was arraigned in the trial court on October 31, 1975; trial began January 5, 1976.

Appellant first contends the information failed to specifically state a crime because it substituted the word "handgun" for " dangerous or deadly weapon," as set

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out in the statute. An information must state the crime in the language of the statute or in words which convey a similar meaning. IC § 35-3.1-1-2(a) (2) (Burns' 1975); Sullivan v. State, (1957) 236 Ind. 446, 139 N.E.2d 893. This Court will construe language used in light of its common acceptance and understanding. Dorsey v. State, (1970) 254 Ind. 409, 260 N.E.2d 800. The elements of armed robbery are: (1) the taking of an article of value from another by a person over 16 years of age; (2) by placing one in fear; and (3) while armed with a dangerous or deadly [267 Ind. 429] weapon. Schuster v. State, (1973) 261 Ind. 299, 302 N.E.2d 496. The information adequately set forth each of these elements. A "handgun" is considered to be a dangerous or deadly weapon within the meaning of IC § 35-12-1-1 (Burns' 1975). In Rowe v. State, (1974) 262 Ind. 250, 314 N.E.2d 745, this Court affirmed a conviction for robbery under this statute, stating that testimony which revealed that the defendant had used a .45 caliber automatic pistol was clearly sufficient to establish that the felony was committed while armed with a deadly weapon. We therefore hold the information in this case was properly drawn so as to advise the appellant of the crime with which he was charged.

Appellant next claims he was prejudiced because the information charged him with "take, rob and steal," rather than the word "take," as stated in the statute, IC § 35-3.1-1-2(a)(4) (Burns' 1975). The...