St. Germain v. State
| Decision Date | 28 November 1977 |
| Docket Number | No. 277S129,277S129 |
| Citation | 267 Ind. 252,369 N.E.2d 931 |
| Parties | Kenneth ST. GERMAIN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Bobby Jay Small, David P. Freund, Lawrence D. Giddings, Deputy Public Defenders, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was convicted in the St. Joseph Superior Court of the offense of commission of a felony, robbery, while armed with a deadly or dangerous weapon. Ind.Code § 35-12-1-1 (Burns 1975). The sole issue presented for review is whether appellant was entitled to have the jury instructed that he could be convicted of the offense of commission of a crime of violence when armed with a firearm. Ind.Code § 35-23-4.1-2 (Burns 1975).
Appellant was charged with robbing the cashier of a White House Restaurant in South Bend, while armed with a .22 caliber revolver. He was identified at trial by the cashier, and presented an alibi defense.
The trial court gave instructions identifying and defining the lesser and included offenses of committing a felony, robbery, while armed; including one so identifying simple robbery. However, the court refused the following instruction tendered by the defendant "There is, included in the offense of armed robbery, the offense of committing a crime of violence while armed with a firearm.
This offense is defined as follows:
If any person commits . . . a crime of violence when armed with a firearm, he . . . is guilty of a felony and upon conviction, shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) and by imprisonment in the state prison for any determinate period of not less than one nor more than ten (10) years.
(IC 35-23-4.1-2 and IC 35-23-4.1-18(b))"
The instruction was based upon the following provisions of the Indiana Firearms Act:
"Any person who violates any provision of sections 2, 6, 11, 12, or 14 of this chapter is guilty of a felony and upon conviction, shall be punished by a fine of not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) and by imprisonment in the state prison for any determinate period of not less than one (1) nor more than ten (10) years." § 35-23-4.1-18(b)
The former section was repealed effective October 1, 1977, and references to it were deleted from the latter section effective on the same date.
Counsel on both sides in their briefs have assumed that the above provisions of the Firearm Act created a distinct and separate offense, and have contrasted such assumed offense with the offense of committing a felony, robbery, while armed; and have considered such offense in light of the evidence presented. Upon consideration of the text and history of these provisions, the correctness of this assumption is questionable. The use in section 35-23-4.1-2 of the permissive term "may" rather than the usual term "shall" is unusual. The provisions are modeled after the Uniform Firearms Act approved by the Conference of Commissioners on Uniform State Laws in 1930. In their original forms in that proposed statute, they probably were not intended to create a new substantive offense, but were either intended to increase the penalty if the underlying "crime of violence" was committed while armed with a firearm, or to prevent firearm violations created in subsequent section of the act from merging with the greater underlying violent crimes. State v. Rose, (1972) 7 Wash.App. 176, 498 P.2d 897; Commonwealth ex rel. Curry v. Myers, (1961) 195 Pa.Super. 480, 171 A.2d 792. Even if these provisions as originally enacted in Indiana did not create a new offense the question would still remain whether the amendments of 1973 did so; however, this is a question which we need not definitively decide here. For, even assuming that a new substantive offense was so created, appellant was not entitled to the instruction which was requested.
The instruction requested would have permitted the jury...
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