Smith v. State, No. 282S58

Docket NºNo. 282S58
Citation445 N.E.2d 998
Case DateMarch 10, 1983
CourtSupreme Court of Indiana

Page 998

445 N.E.2d 998
Larry David SMITH, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 282S58.
Supreme Court of Indiana.
March 10, 1983.

Page 999

Patrick J. Roberts, J. Richard Sims, Cole, Haig, Roberts & Sims, Peru, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of Attempted Armed Robbery, Ind.Code Sec. 35-41-5-1; Sec. 35-42-5-1 (Burns 1979), and sentenced to twenty (20) years imprisonment and a fine of five thousand dollars ($5,000.00). The only issue presented by this direct appeal challenges the propriety of the trial court's having given the jury the option of convicting Defendant of Attempted Robbery, Class B felony, as a lesser included offense of the Attempted Robbery, Class A felony, charged in the information (in pertinent part):

" * * * Larry David Smith did knowingly attempt to take property, to wit U.S. currency, by using and threatening the use of force, to wit a firearm or bomb, thereby putting Roger Smith in fear and causing bodily injury to Roger Smith * * *." R. at 34.

Defendant correctly notes that under Ind.Code Sec. 35-42-5-1, the Robbery statute, the class B felony is not inherently included within a charge of the class A felony. Cape v. State, (1980) Ind., 400 N.E.2d 161, 164. However, the State, by careful draftsmanship of the information, may afford itself or the accused the option of seeking a conviction upon a lesser offense, which, though not inherently included by virtue of the statutory definitions, is nevertheless included by virtue of the allegations. See Jones v. State, (1982) Ind., 438 N.E.2d 972, 975. Conceivably, a criminal transaction of Robbery may include both a class A and a class B felony, and the entire transaction may be charged in one count of an information so as to allow the State to seek a conviction upon either the class A or the class B felony. Consequently, we must determine if the information at bar charges an Attempted Robbery, class B felony. Defendant argues that it does not:

"The information does not allege that the defendant committed the act 'while armed with a deadly weapon' as set out in I.C. 35-42-5-1, but only refers to the firearm or bomb as the means whereby Roger Smith was put in fear." Defendant's Brief at 13.

An information must state the crime in words of the statute or words that convey a similar meaning. Askew...

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9 practice notes
  • Burris v. Farley, No. 3:92cv0755 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 27 January 1994
    ...An information must state the crime in words of the statute or words that convey a similar meaning. Smith v. State, (1983) Ind., 445 N.E.2d 998; Askew v. State, (1982) Ind., 439 N.E.2d 1350. The information did allege that the murder was committed "while in the commission of Robbery, a......
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • 29 June 1984
    ...An information must state the crime in words of the statute or words that convey a similar meaning. Smith v. State, (1983) Ind., 445 N.E.2d 998; Askew v. State, (1982) Ind., 439 N.E.2d 1350. The information did allege that the murder was committed "while in the commission of Robbery, a......
  • Mauricio v. State, Nos. 683S203
    • United States
    • Indiana Supreme Court of Indiana
    • 2 April 1985
    ...was aware of the nature of the charge against him. Therefore, his due process rights were not violated. In Smith v. State, (1983) Ind., 445 N.E.2d 998, this Court held that absence of detail in an information is fatal to the information only if such phraseology misleads the defendant or fai......
  • Smith v. State, No. 483S141
    • United States
    • Indiana Supreme Court of Indiana
    • 12 July 1984
    ...or words that convey a similar meaning. However, the exact words of the statute need not be employed. Smith v. State, (1983) Ind., 445 N.E.2d 998; Askew v. State, (1982) Ind., 439 N.E.2d 1350; Brown v. State, (1980) Ind.App., 403 N.E.2d 901. The accused must be sufficiently apprised of the ......
  • Request a trial to view additional results
9 cases
  • Burris v. Farley, No. 3:92cv0755 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 27 January 1994
    ...An information must state the crime in words of the statute or words that convey a similar meaning. Smith v. State, (1983) Ind., 445 N.E.2d 998; Askew v. State, (1982) Ind., 439 N.E.2d 1350. The information did allege that the murder was committed "while in the commission of Robbery, a......
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • 29 June 1984
    ...An information must state the crime in words of the statute or words that convey a similar meaning. Smith v. State, (1983) Ind., 445 N.E.2d 998; Askew v. State, (1982) Ind., 439 N.E.2d 1350. The information did allege that the murder was committed "while in the commission of Robbery, a......
  • Mauricio v. State, Nos. 683S203
    • United States
    • Indiana Supreme Court of Indiana
    • 2 April 1985
    ...was aware of the nature of the charge against him. Therefore, his due process rights were not violated. In Smith v. State, (1983) Ind., 445 N.E.2d 998, this Court held that absence of detail in an information is fatal to the information only if such phraseology misleads the defendant or fai......
  • Smith v. State, No. 483S141
    • United States
    • Indiana Supreme Court of Indiana
    • 12 July 1984
    ...or words that convey a similar meaning. However, the exact words of the statute need not be employed. Smith v. State, (1983) Ind., 445 N.E.2d 998; Askew v. State, (1982) Ind., 439 N.E.2d 1350; Brown v. State, (1980) Ind.App., 403 N.E.2d 901. The accused must be sufficiently apprised of the ......
  • Request a trial to view additional results

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