Holloway v. State

• Decision Date: 28 July 1976
• Docket Number: No. 3--975A213,3--975A213
• Citation: 170 Ind.App. 155,352 N.E.2d 523
• Parties: Jeffrey Bruce HOLLOWAY, Ddfendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 523

352 N.E.2d 523

170 Ind.App. 155

Jeffrey Bruce HOLLOWAY, Ddfendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--975A213.

Court of Appeals of Indiana, Third District.

July 28, 1976.

Rehearing Denied Sept. 3, 1976.

James L. Wieser, Lund & Wieser, P.C., Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

GARRARD, Judge.

This appeal requires us to examine the law pertaining to convictions for lesser included offenses in the area of assault and battery.

The evidence favoring the verdict disclosed that a Gary police officer, who was working as a store security officer at the time, observed appellant Holloway in the store's parking lot. Believing that Holloway was carrying a pair of stolen shoes, the officer went up to Holloway's auto displayed his badge and stated, 'Gary Police Department officer, stop you are under arrest for shoplifting.' When the officer then attempted to go around the vehicle, Holloway put the auto in gear and drove away. The auto struck the officer and knocked him to the ground. According to the officer, as a result he received a skinned knee, bruises and his pants were torn.

Holloway was charged with assault and battery with intent to kill. He was convicted of aggravated assault and battery. His appeal challenges the validity of that finding since there was no showing that any great bodily harm or disfigurement was inflicted. The state concedes the injuries were insufficient to constitute great bodily harm or disfigurement. See, Froedge v. State (1968), 249 Ind. 438, 233 N.E.2d 631; Allison v. State (1973), Ind.App., 299 N.E.2d 618. However, the state argues that under Indiana law, since the evidence would have supported a finding of assault and battery with intent to kill, Holloway cannot complain because he was convicted of a lesser crime. In support of this position, the state urges those cases in which a conviction of voluntary manslaughter has been upheld despite the fact that no evidence was presented of any sudden heat of passion, and despite the fact that the statute defining voluntary manslaughter speaks in such terms.

We first note that we are not here dealing with a lesser offense which is analytically a necessarily included offense. See, House v. State (1917), 186 Ind. 593, 117 N.E. 647. Assault and battery with intent to kill is defined as:

'Whoever with intent to kill another human being perpetrates an assault or assault and battery upon the other human being. . . .' IC 1971, 35--13--2--1.

The elements of the offense are intent to kill coupled with either an assault or assault and battery.

However, the aggravated assault and battery statute provides:

'Whoever intentionally or knowingly and unlawfully inflicts great bodily harm or disfigurement upon another person . . ..' IC 1971, 35--13--3--1.

The critical distinction between aggravated assault and battery and other offenses of assault and battery is the nature of the harm inflicted upon the victim. Froedge, supra; Allison, supra. Accordingly, one can commit an assault and battery with intent to kill, and nevertheless fail to inflict great bodily harm or disfigurement.

Thus, aggravated assault and battery as a lesser included offense to a charge of assault and battery with intent to kill falls within that category of 'possible' included offenses which depend upon the language used in the charge and the evidence produced at trial. See, e.g., Thomas v. State (1970), 254 Ind. 600, 261 N.E.2d 588; Sullivan v. State (1957), 236 Ind. 446, 139 N.E.2d 893. A person actually committing assault and battery with intent to kill may or may not commit aggravated assault and battery at the same time, depending upon the harm inflicted.

Do the murder-manslaughter cases contradict this analysis? As was developed in Robinson v. State (1974), Ind.App., 309 N.E.2d 833, rev'd on other grounds Ind., 317 N.E.2d 850, voluntary manslaughter would not appear to be a 'necessarily' lesser included offense of murder in either degree under the House test because of the additional element of 'sudden heat' not contained in the offense of murder. Nevertheless, the courts have refused to reverse convictions for voluntary manslaughter when there was sufficient evidence to sustain a conviction on a charged offense of murder, even though there was no evidence of 'sudden heat.' See, Hopkins v. State (1975), Ind.App., 323 N.E.2d 232; Landers v. State (1975), Ind.App., 331 N.E.2d 770; McDonald v. State (1976), Ind., 346 N.E.2d 569; Robinson v. State, supra; Crickmore v. State (1938), 213 Ind. 586, 12 N.E.2d 266; and Hasenfuss v. State (1901), 156 Ind. 246, 59 N.E. 463.

We believe this apparent contradiction can be explained through examination of the peculiar relationship between 'sudden heat' and 'malice' in the context of the early common law view of manslaughter.

The earliest case in which the rationale appears is Hasenfuss v. State, supra. There, the defendant was charged with first degree murder by means of administering poison. He was convicted by a jury of voluntary manslaughter. On appeal, defendant argued that voluntary manslaughter could not be a lesser included offense of first degree murder because of the additional element of sudden hear required for manslaughter. He claimed that the jury was therefore without power to convict of the 'lower' offense. The Supreme Court disagreed. While the statutory definition of voluntary manslaughter included the element of 'sudden heat,' the Court observed, quoting from Judge Gillett:

'Voluntary manslaughter possesses the common element of murder in both its degrees,--the intention to kill,--but it is distinguished from these crimes by an absence of malice, and, of course, premeditation. The statute might be thus paraphrased without doing violence to its meaning. Voluntary manslaughter is an unlawful, intentional killing of a human being, without malice and without premeditation. Although the statute adds 'upon a sudden heat,' it is only in the application of the definition to a given case that this element must be made use of, for there could be no such thing as an unlawful intentional killing without malice, unless it was done upon a sudden heat. This mitigating fact reduces the crime to manslaughter, if upon the whole evidence it appears sufficient to rebut the presumption of malice arising from a voluntary killing.' It has been repeatedly held by this court for a period of nearly 50 years, that, upon an indictment for murder in either the first or second degree the defendant may be convicted of manslaughter. (citations omitted) In Moon v. State, 3 Ind. 438, the court said: 'An indictment for murder in the first degree is really an indictment for one of three distinct crimes, namely, murder in the first, murder in the second degree, and manslaughter." (Emphasis added) 156 Ind. 246, 249--50, 59 N.E. 463, 465.

In other words, 'sudden heat' is not, like most other elements, an indicia of culpability. Instead, it serves to negate an indicia of culpability-malice. Consequently, the elements of voluntary manslaughter, as a lesser included offense of murder, become an intentional and unlawful killing without malice. As such, voluntary manslaughter would meet the House test as a 'necessarily' lesser included offense of murder; and proof of murder, in either degree, would prove voluntary manslaughter. ¹

In addition, Hasenfuss articulated two substantive rationales for its holding. The first was statutory:

'We have some statutory provisions bearing upon the question involved. Sections 259, 260 of the criminal code, being §§ 1903, 1904 Burns 1894, provide as follows: 'Sec. 259. Upon an indictment or information for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto or of an attempt to commit the offense.' 'Sec. 260. 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 information.' ²

Certainly our decisions may be said to settle the question beyond controversy, and correctly so, that, under the law of this State in all cases of criminal homicide, regardless of the means by which it is committed, the crime is graduated and must be one or the other of the three grades of homicide, namely, murder in the first or second degree, or manslaughter, and that it is in the province of the jury to determine under the evidence of which they will convict the accused.' 156 Ind. 246, 250, 59 N.E. 463, 465.

The argument presented was that homicide is 'an offense of different degrees' and manslaughter (voluntary or involuntary) is, according to judicial precedent, one of the degrees. Therefore, a jury may, under the statute, convict of the lower 'degree' even if not 'necessarily' included in the greater offense.

The second rationale in Hasenfuss was constitutional. Article I, § 19 of the Indiana Constitution provides:

'Jury in criminal cases--Right to determine law and facts.--In all criminal cases whatever, the jury shall have the right to determine the law and the facts.'

This led the Court to observe:

'The jury, under our constitution, being the exclusive judges of both the law and the facts in a criminal case, and having the power, as we have said, to find a defendant guilty of manslaughter under a charge of murder in the first degree, may, if they so determine, abuse such power, or improperly exercise it, and return a verdict for manslaughter upon a trial of murder in the first degree, although the facts proved in the case conclusively establish beyond any reasonable doubt the guilt of the accused of murder in the first degree. Such a verdict being within the issue tendered by the indictment is valid so far as the power of the jury is concerned, and is binding upon the State...