167 Ind. App. 227 | Ind. Ct. App. | 1975
— Joseph Nathaniel Bennett, defendant, is appealing his conviction of theft from the person,
We affirm.
The facts viewed most favorably to the State reveal that on September 12, 1969 defendant gave Ruby Rhodes and her
Defendant was indicted for robbery on February 16, 1971. Trial before the court was commenced March 18, 1971, after which defendant was found guilty of theft from the person. The appeal was perfected by the filing of a belated amended motion to correct errors on November 22,1974.
Defendant’s first argument is that no evidence was elicited showing that prosecution of this cause was commenced within the five year statute of limitation which limits prosecution of a felony. IC 1971, 35-1-8-4.
In any prosecution, it is incumbent upon the State to establish that the crime charged was committed within the statute of limitations. Fisher v. State (1973), 259 Ind. 633, 291 N.E.2d 76; Woods v. State (1968), 250 Ind. 132, 235 N.E.2d 479; Beard v. State (1975), 164 Ind. App. 210, 327 N.E.2d 629. Contrary to defendant’s assertion, however, the record is replete with testimony and inferences which can be drawn therefrom dating the occurrence of the crime in September of 1969. For example, the transcript discloses the following testimony of Officer Offutt of the Indianapolis Police Department:
“Q. And were you a Police Officer on the twelfth day of September, 1969 ?
A. I was.
Q. Did you participate in an investigation of the robbery of one Ruby Rhodes ?
A. Yes, sir, I did.”
Defendant next argues that the trial court committed reversible error by finding him guilty of theft from the person after he was initially charged with robbery. He points out that the theft statute does not specifically set forth the felony of theft from the person and-that as a result, he-was convicted of a non-existent crime.
As stated, defendant was originally indicted for the crime of robbery. (IC 1971, 35-13-4-8, Ind. Ann. Stat. § 1Ó-4101 (Burns 1956)). Indiana decisional law has recognized that theft from the person is a lesser included offense in a charge of robbery. Hitch v. State (1972), 259 Ind. 1, 284 N.E.2d 783; Carter v. State (1973), 155 Ind. App. 10, 291 N.E.2d 109. Furthermore, an indictment alleging robbery provides defendant sufficient notice of the fact that he may be found guilty of theft from the person. As stated in Carter, supra:
“The necessarily lesser included offense need not be charged as such, in the indictment or affidavit in order to authorize a conviction.' Where the evidence presented is sufficient to establish a necessarily lesser included crime, 9-1817 authorizes conviction of the necessarily lesser included offense.” 155 Ind. App. at 15, 291 N.E.2d at 112.
While we agree with defendant’s statement that “theft from the person” is not set out verbatim in the theft statute,
Note. — Reported at 338 N.E.2d 294.
. IC 1971, 35-17-5-3, Ind. Ann. Stat. § 10-3030 (Acts 1963, [Spec. Sess.] Cb. 10, §3). Later amended by Acts 1971, P.L. 458, § 1, p. 2096.
. But, .see the -penalty provision, IC 1971, 35-17^5-12(5) (e), Ind. Ann. Stat. § 10-3039 (5) (e) (Acts 1963, [Spec. Sess.] Ch, 10, §12, p. 10). Later amended by Acts 1971, P.L. 458, §2, p. 2096: Acts 1973, P.L. 330, § 2, p. 1810.