Sund v. State

• Decision Date: 23 December 1974
• Docket Number: No. 2--1073A235,2--1073A235
• Parties: Jerry SUND, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 790

320 N.E.2d 790

162 Ind.App. 550

Jerry SUND, Appellant, v. STATE of Indiana, Appellee.

No. 2--1073A235.

Court of Appeals of Indiana, Second District.

Dec. 23, 1974.

Loren J. Comstock, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., David A. Miller, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Presiding Judge.

Defendant-appellant Sund was charged with First Degree Arson. Following trial by jury, he was convicted of Fourth Degree Arson and was sentenced to a term of imprisonment for not less than one nor more than five years.

Upon appeal, Sund argues:

(1) That the crime of which he was convicted, Fourth Degree Arson, is not an offense necessarily included within First Degree Arson as defined by IC 35--16--1--1, Ind.Ann.Stat. § 10--301 (Burns 1974 Supp.) nor is it a lesser included offense of First Degree Arson, as the latter crime was specifically charged in this instance; and

(2) That the evidence failed to prove an essential element of Fourth Degree Arson, i.e., the intent to set fire to or burn the property of another.

We affirm.

I

NOTWITHSTANDING ARGUMENT THAT FIRST DEGREE ARSON AS HERE CHARGED DOES NOT PERMIT FOURTH DEGREE ARSON CONVICTION VERDICT AND JUDGMENT WAS PROPER UNDER INSTRUCTION REQUESTED BY DEFENDANT

Sund was specifically charged by affidavit alleging that he:

'on or about the 7th day of August, A.D.1972, at and in the County of Marion, in the State of Indiana, did then and there feloniously, willfully, and maliciously set fire and burn a certain dwelling house then and there situated at 2135 Prospect, City of Indianapolis, County of Marion, State of Indiana, then and there and thereby the property of another person, to-wit: Ruth Robbins, and did then and there and thereby feloniously, willfully and maliciously burn and destroy said property to the damage thereof in the sum of eight-thousand dollars ($8,000.00).'

The First Degree Arson statute, IC 35--16--1--1, supra, reads insofar as pertinent:

'Any person who wilfully and maliciously sets fire to or burns, * * * any dwelling-house * * *, such being the property of another * * * shall be guilty of arson in the first degree and, upon conviction thereof, shall be imprisoned in the state prison not less than five (5) years nor more than twenty (20) years * * *.'

Fourth Degree Arson is defined in IC 35--16--1--5, Ind.Ann.Stat. § 10--305 (Burns 1974 Supp.) which reads in part as follows:

'Whoever wilfully and maliciously prepares, places, arranges, sets or distributes, * * * any combustible material, * * * liquid or other substance in or about any house, building or other structure, * * * with the intent to set fire to, burn, blow up, or destroy any such property, * * * such property being the property of another; * * * shall be guilty of arson in the fourth degree and shall, upon conviction thereof, be imprisoned in the state prison not less than one (1) year nor more than five (5) years, to which may be added a fine not to exceed five hundred dollars ($500.00).'

Sund cogently argues that Fourth Degree Arson is not a lesser included offense within First Degree Arson as here charged since it is possible to commit First Degree Arson without first having committed an act constituting Fourth Degree Arson and since the affidavit here did not allege that he prepared, placed, arranged, set or distributed a combustible material, liquid or other substance. See Crump v. State (1972), Ind., 287 N.E.2d 342.

We need not, however, engage in the self-flagellation which would be inherent in an attempt to apply the lesser included offense doctrine to the facts here presented. See Harrison v. State (1973), Ind.App., 292 N.E.2d 612. ¹

Notwithstanding the academic merit of Sund's argument, the apparent variance between the crime here charged and the crime of which he was convicted is not cause for reversal. Sund specifically invited the very verdict which the jury here rendered. Sund requested and obtained the giving of an instruction to the jury which advised that Fourth Degree Arson was an included offense of First Degree Arson as charged. He may not now be heard to complain that he was convicted of the very offense which he asked to be submitted to the jury as an alternative consideration and we will not set aside the verdict and judgment which he invited. Stamper v. State (1973), Ind., 294 N.E.2d 609; Jacoby v. State (1936), 210 Ind. 49, 199 N.E. 563. No doubt defendant would have preferred the lesser penalty provided for Attempted Arson, if not outright acquittal; but the result here obtained would seem eminently more palatable to him than other alternatives which were available to the jury under the First Degree Arson charge and the evidence adduced at trial.

II ELEMENT OF INTENT REQUIRED FOR FOURTH DEGREE ARSON CONVICTION ADEQUATELY SUPPORTED BY EVIDENCE

It is unquestioned that prior to August 7, 1972, Sund was living with his wife and three year old son in a dwelling house owned by Ruth Robbins at 2135 Prospect Street, in Indianapolis. On August 6, Mrs. Sund asked her husband to leave the residence following a domestic altercation. At approximately 10:00 P.M., Sund returned for his clothes and found them in a box on the back porch. He sat on the front porch for several hours and then went to a service station where he purchased a gallon of gasoline. At approximately 4:00...