Hollowell v. State

• Decision Date: 26 May 1971
• Docket Number: No. 170S11,170S11
• Citation: 256 Ind. 467,269 N.E.2d 755
• Parties: David Arnold HOLLOWELL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 755

269 N.E.2d 755

256 Ind. 467

David Arnold HOLLOWELL, Appellant, v. STATE of Indiana, Appellee.

No. 170S11.

Supreme Court of Indiana.

May 26, 1971.

Donald D. Chiappetta, Muncie, for appellant.

Theodore L. Sendak, Atty. Gen., J. Frank Hanley, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Judge.

This is an appeal from a conviction in the Delaware Circuit Court. Trial was had by jury and the appellant was convicted of First Degree Murder, felony murder, pursuant to I.C.1971, 35--13--4--1, being Burns § 10--3401, which states:

'Whoever purposely and with premeditated malice, or in the perpetration of or attempt to perpetrate a rape, arson, robbery, or burglary, kills any human being, is guilty of murder in the first degree, and on conviction shall suffer death or be imprisoned in the state prison during life.'

Appellant's first alleged error is that the verdict is not sustained by sufficient evidence in that the State totally failed to prove that the appellant, Hollowell, was over the age of sixteen years at the time of the alleged robbery which resulted in the death of the decedent.

It is prudent here to set forth the indictment by which the appellant was charged:

'Indictment for Murder in the First Degree

(Clause One) The Grand Jury of the County of Delaware for the April Term, 1967, being duly sworn, empaneled, and charged in the name and upon the authority of the State of Indiana, upon their oath charge and present that David Arnold Hollowell and Louis Lee Gilliard, on or about the 1st day of July, 1967, at and in the County of Delaware, in the State of Indiana, did then and there unlawfully and feloniously kill and murder one, John H. Hammer, who was then and there a human being, in an attempt to perpetrate a robbery, by then and there unlawfully, feloniously, and forcibly, and by violence and putting the said John H. Hammer in fear, attempting to take and steal from the person and possession of the said John H. Hammer, certain property, to-wit: a paper sack containing two bottles of liquor, then in the possession of the said John H. Hammer and belonging to one M. W. Dalby, the value of which property is to this Grand Jury unknown; (Clause Two) and the said David Arnold Hollowell and Louis Lee Gilliard, while being engaged in said attempt to perpetrate said robbery, did then and there unlawfully, and feloniously shoot at and against the said John H. Hammer with certain deadly weapon, to-wit: a pistol, then and there loaded with gunpowder and bullets and thereby inflicted a mortal wound upon the said John H. Hammer, from which mortal wound the said John H. Hammer then and there languished in said County and State, and thereafter died on the said 1st day of July, 1967. And so, the Grand Jurors aforesaid, upon their oath aforesaid, do say and charge that the said David Arnold Hollowell and Louis Lee Gilliard, in the manner and form aforesaid, unlawfully and feloniously, did kill and murder the said John H. Hammer, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana.' (Bracketed words ours.)

It is self evident in reading the indictment that the appellant was charged with felony murder, to-wit: a felonious killing in the attempted perpetration of a robbery. The crime of robbery is found in I.C.1971, 35--13--4--6, being Burns § 10--4101:

'Whoever takes from the person of another any article of value by violence or by putting in fear, is guilty of robbery, and on conviction shall be imprisoned not less than ten years nor more than twenty-five years, and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period. Whoever inflicts any would or other physical injury upon any person with any firearm, dirk, stiletto, bludgeon, billy, club, blackjack, or any other deadly or dangerous weapon or instrument while engaged in the commission of a robbery, or while attempting to commit a robbery, shall, upon conviction, be imprisoned in the state prison for life.'

The age of the accused is not an element to be proven under the aforementioned felony murder statute, nor is it an element here of the foundation crime of robbery. Therefore, the verdict cannot be deficient in this respect and the trial court did not err in pronouncing judgment on the verdict.

In support of this alleged error appellant contends that the indictment must be read in light of I.C.1971, 35--12--1--1, being Burns § 10--4709; commission of or attempt to commit crime while armed with a deadly weapon, (armed robbery in this case). An essential element to be pleaded and proved under this statute is that the accused is over the age of sixteen years. Thus, it is the appellant's contention that the foundation crime upon which this felony murder is based is that of armed robbery in violation of Burns § 10--4709, supra, and the evidence is insufficient in that the State failed to prove an essential element of the crime; that the appellant was over the age of sixteen years.

While we would be inclined to agree with the appellant that one who is incapable of committing the foundation crime cannot be convicted of a felony murder, such is not the case here. The foundation crime here is robbery (Burns § 10--4101, supra) and not commission of a crime while armed (Burns § 10--4709, supra) as a careful reading of the indictment will disclose.

Clause One of the indictment sets forth the charge against the appellant to-wit: a felonious killing while attempting a robbery. The foundation crime here is obviously robbery pursuant to Burns § 10--4101, supra. No mention is made in Clause One that the robbery was attempted while the appellant was armed with a deadly weapon and over sixteen years of age as would be required for armed robbery, Burns § 10--4709, supra. We must assume then that the appellant's argument is based upon Clause Two. However, Clause Two does not set forth the foundation crime, but rather describes the manner of the...