Roy X. RODDY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 3-378A75.
Court of Appeals of Indiana, Third District.
Sept. 20, 1979.
Rehearing Denied Oct. 31, 1979.
394 N.E.2d 1098
Finally, claimants challenge the refusal of the trial court to order reimbursement to Ellsworth for $1,200 which he allegedly paid an expert witness who testified at the hearing concerning injunctive relief.
Ellsworth failed to include this $1,200 expense when he filed his claim against the $78,000 deposit. Consequently, the class members were not given notice of this amount.
At the first hearing concerning the claims, Ellsworth initially spoke specifically of only $200 in expense for the witness. Later, he testified that he had paid the witness $1,200. Class members requested some additional evidence of payment, such as a receipt or a cancelled check. Although Ellsworth insisted that he had such evidence, he did not produce the evidence at either of the hearings. Because Ellsworth left the matter as an issue based strictly upon witness credibility, this court cannot interfere with the conclusion reached by the trial court.
We emphasize the uniqueness of the facts in the case at bar. Having carefully considered the arguments presented and the evidence provided, we must hold that the trial court‘s conclusion with regard to the claims is not against the logic and effect of all facts and circumstances before it.
Judgment affirmed.
LYBROOK and ROBERTSON, JJ., concur.
Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.
A jury found Roy X. Roddy guilty of the Commission or Attempted Commission of a Felony While Armed with a Deadly Weapon.1 He was sentenced to the Indiana Department of Corrections for a period of not less than ten (10) years. In his appeal to this Court, Roddy raises the following issues:
- Whether the evidence is sufficient to support his conviction?
- Whether the trial court erred in its refusal to instruct the jury on various lesser offenses?
We affirm.
I. Sufficiency of the Evidence
Roddy challenges his conviction on the basis that the evidence was insufficient to prove two elements of the crime charged. He contends that the evidence does not establish: 1) that he took or attempted to take an article of value from another person; and 2) that he was at least sixteen years of age at the time the offense was committed.
When the sufficiency of the evidence is raised as an issue on appeal, this Court will examine only the evidence most favorable to the State, together with the reasonable inferences to be drawn therefrom. If, from that viewpoint, there is sufficient evidence of probative value to support the jury‘s verdict, we will not set the conviction aside. Henderson v. State (1976), 264 Ind. 334, 335, 343 N.E.2d 776, 777.
The evidence most favorable to the State regarding whether Roddy took or attempted to take an article of value from another is as follows. William T. Hall, Jr., a gas station attendant at “J. and J. Shell” service station in Gary, Indiana, testified that at 12:45 a. m. on April 9, 1977, two men in a red Toyota drove into the gas station. According to Hall, after he had filled their tank with gas and collected the purchase price, the driver pulled a shotgun from the car, pointed it at Hall, and said it was “a stick up.” Hall retreated to the confines of the garage, where he locked himself behind a steel door. The men then fled the premises without taking anything from the station. Hall, who stated that the incident placed him in fear for his life, testified that he was able to see the man‘s face in the well-lighted area adjacent to the gasoline pumps. Based on this observation, Hall made an in-court identification of Roddy as the man who had held the shotgun and announced the “stick up“.
Roddy argues that this evidence is insufficient to establish that he took or attempted to take an article of value from another. We disagree. Based on the testimony of Hall that Roddy pointed a shotgun at him and announced that a “stick up” was in progress, the jury could have concluded beyond a reasonable doubt that Roddy did attempt to take an article of value from another person and that Roddy‘s conduct caused Hall to fear for his personal safety. George v. State (1969), 252 Ind. 344, 346, 247 N.E.2d 823, 824; Asocar v. State (1969), 252 Ind. 326, 330, 247 N.E.2d 679, 681.
Roddy has not followed the procedure that was necessary to preserve for
II. Lesser Included Offenses
The trial court refused Roddy‘s tendered instructions and forms of verdicts regarding the lesser offenses of: (1) Assault (
Roddy‘s contentions are predicated upon
One offense included in another.—In all other cases, the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information. (Emphasis supplied.).
The statutory provision that the lesser offense must be “necessarily included in that [offense] with which he is charged in the indictment or information” has indirectly caused much of the difficulty in applying the statute.
The foundation for our analysis was established in Lawrence v. State (1978), Ind., 375 N.E.2d 208. There, the Court, relying on its previous holdings in Hash v. State (1972), 258 Ind. 692, 284 N.E.2d 770 and Watford v. State (1957), 237 Ind. 10, 143 N.E.2d 405, emphasized that the resolution of the question whether a defendant can properly be found guilty of a lesser offense is determined by a two-step inquiry. Lawrence v. State, supra, at 212. The first step focuses solely on the allegations contained in the charging instrument, while the second step concerns the evidence presented at trial. Each step is applied independently of its counterpart to effectuate fundamental principles of criminal law. Consequently, both steps of the inquiry must be satisfied in order for a defendant to properly be convicted of a lesser offense.8
(A) Purpose and Methodology
The first step of the Lawrence inquiry is designed to ascertain whether the requirements of
First, it is well-established that due process requires that a defendant be given notice of the crime or crimes with which he or she is charged.9 Absent sufficient notice that a particular offense is charged, a defendant cannot be convicted of that crime.
Equally well-settled is the rule that when a defendant allegedly commits an act which constitutes a violation of more than one criminal statute, absolute discretion is vested in the State to decide which statute(s) he or she will be charged with violating. Adams v. State (1974), 262 Ind. 220, 224, 314 N.E.2d 53, 56; Von Hauger v. State (1969), 252 Ind. 619, 623, 251 N.E.2d 116, 118. In particular cases, the State may, by the words it chooses to employ in the charging instrument, determine whether a lesser offense is “included” within the charged crime. Accordingly, under
In order to effectuate these principles and to determine whether a lesser offense satisfies the statutory requirement that it be “necessarily included in that [offense] with which he [the defendant] is charged in the indictment or information“, the trial court must examine the criminal statutes which define the greater and lesser offenses, together with the allegations of fact contained in the charging instrument. Lawrence v. State, supra. From this examination, the court determines whether a conviction of the greater offense, as it is charged in the indictment or information, requires proof of all essential elements of the lesser offense, plus an additional element which distinguishes the two offenses.
- Whether every essential element of the lesser offense was allegedly committed during the course of the charged crime? and
- Whether each essential element of the lesser offense constitutes an essential element of the greater offense, as it was allegedly committed? and
- Whether a conviction of the charged offense requires proof of an element additional to those which comprise the lesser offense?10
When all of these conditions are satisfied, the lesser offense is a “necessarily included” one.
“. . . to be necessarily included in the greater offense, the lesser offense must be such that it is impossible to commit the greater without first having committed the lesser. . . .”
Hash v. State (1972), 258 Ind. 692, 696, 284 N.E.2d 770, 773, quoting Hobbs v. State (1969), 253 Ind. 195, 199, 252 N.E.2d 498, 500, reaffirming Watford v. State (1957), 237 Ind. 10, 15, 143 N.E.2d 405, 407, quoting House v. State (1917), 186 Ind. 593, 595-96, 117 N.E. 647, 648. Despite the venerable nature of this definition, it is our conclusion that it tends to obfuscate not only the manner by which courts determine whether a lesser offense is an included one, but also the conceptual nature of that process.
Much of the confusion surrounding the law of lesser included offenses has been engendered by the terminology employed by the courts. The seed of this confusion was sown by the legislature in 1905 when, in enacting
We emphasize, however, that behind the contradictory nature of the terms employed by the courts lies harmonious substantive determinations. The recognition of the “possibly included” lesser offense was not a deviation from the well-established common law definition of a “necessarily included” offense, but rather merely a reflection of the long-recognized fact that included offenses come in two varieties. The two types of “necessarily included” offenses can be most aptly characterized as the “inherently included” and “possibly included.” These appellations best allude to the manner by which the courts of this state have, since the inception of the statute in 1905, determined whether a particular lesser offense was included within the crime charged.
Inherently included offenses, by their nature, square neatly with the long-standing definition of the “necessarily included” offense: that it must be “impossible to commit the greater without first committing the former.” House v. State, supra. As a consequence, Courts have tended to equate the phrase “necessarily included” exclusively with those lesser offenses which are “inherently included.”14 See, e. g., Padgett v. State (1978), Ind.App., 380 N.E.2d 96, 99; Halligan v. State (1978), Ind.App., 375 N.E.2d 1151, 1156-1157. The statutory phrase “necessarily included” also embraces, however, the “possibly included” lesser offense which is alleged to have been committed during the course of the crime charged.
The “possibly included” lesser offense, as its name indicates, may or may not be an offense for which the defendant could properly be convicted. Whether a “possibly included” lesser offense is in fact a “necessarily included” one is dependent upon the manner and means allegedly employed in the commission of the charged crime. The determination thus requires the trial court to examine the factual allegations contained in the charging instrument.
The concept of the “possibly included” lesser offense is illustrated by an examination of Allison v. State (1973), 157 Ind.App. 277, 279, 299 N.E.2d 618, 620. In Allison, the defendant was tried without the intervention of a jury for a charge of Assault and Battery with Intent to Commit Murder. The trial court found him guilty of Aggravated Assault and Battery, a lesser offense. On appeal, defendant Allison was granted a new trial on the basis that Aggravated Assault and Battery was not an included offense of the crime charged.
“However, it is possible for aggravated assault and battery to be a lesser included offense if the element of ‘great bodily harm’ or ‘disfigurement’ is properly alleged in the charging affidavit. See Carter v. State, supra.”
In summary, the determination of whether a particular lesser offense is “included” within the charged crime is, as a general rule, to be made on a case-by-case basis; the trial court examines the criminal statutes which define the greater and lesser offense, together with allegations of fact contained in the charging instrument. When, however, by virtue of the legal definitions of the two offenses, the commission of the lesser offense is inherent to the commission of the charged crime, there is no need to examine the particular factual allegations made in the indictment or information. When the commission of the lesser offense is not inherent to the crime charged, however, the trial court must examine the charging instrument to determine if the elements of the lesser offense, by virtue of the manner and means allegedly employed in the commission of the charged crime, are alleged to have been committed. This requirement effectuates the determination of whether lesser offenses which are possibly included in the crime charged are in fact alleged to have been committed.
If, from this examination, the court determines that proof of those elements which comprise the lesser offense is not required for a conviction of the crime charged, the lesser offense is not “included” within the crime charged—and an instruction and form of verdict on the lesser offense should
B. Application
Roddy was charged by information with the Commission or Attempted Commission of a Felony (Robbery) while Armed with a Deadly Weapon. The charging instrument contained the following allegations:
“[O]n or about the 9th day of April, A.D. 1977, at and in the County of LAKE, and State of Indiana, ROY X. RODDY did then and there unlawfully forcibly and feloniously take, or attempt to take from the person of one WILLIAM THOMAS HALL, JR., by violence or by putting him, the said WILLIAM THOMAS HALL, JR. in fear, certain articles of value, then and there the personal property of the said WILLIAM THOMAS HALL, JR., and that the said ROY X. RODDY was then and there over the age of sixteen (16) years, and while he, the said ROY X. RODDY was then and there armed with a deadly or dangerous weapon, to-wit: a shotgun. . . .” (Emphasis added).
The crime with which Roddy was charged, as defined in
“1) The commission or attempted commission of a felony; “2) The elements of Robbery, the underlying felony: “a) Use of violence or fear “b) To take an article of value “c) From another person; “3) While armed with a deadly or dangerous weapon.”
In conjunction with these allegations and elements of the crime charged, we must examine the elements of Assault, Assault with Intent to Commit a Felony, and Aiming a Weapon at Another to determine if those lesser offenses are “included” within the crime charged. In so proceeding, we note that none of the lesser offenses falls within that category of included offenses which we have previously described as the “inherently included” lesser offense.
1) Assault
The offense of Assault,19 which was the subject of one of Roddy‘s tendered instructions and forms of verdicts, consists of the following elements:
- The present ability to commit a violent injury upon another person; and
- An attempt to so injure another person.
2) Assault with Intent to Commit a Felony
Similarly, we conclude that the lesser offense of Assault with Intent to Commit a Felony, the subject of the second of Roddy‘s tendered instructions and forms of verdicts, is an included offense of the crime charged against him. As defined in
- An assault
- Upon another
- With the intent to commit a felony.
As explained above, the charging instrument alleged that Roddy assaulted gas station attendant Hall as part and parcel of the charged crime. The allegations also indicate that Roddy intended to commit a felony; that conclusion is inferred from the related allegations he took or attempted to take articles of value from Hall by the use of violence or fear. Gregory v. State (1973), 259 Ind. 652, 656, 291 N.E.2d 67, 69. All essential elements of the lesser offense were thus allegedly committed. Those elements comprising the lesser offense are essential elements of the crime charged, as it is alleged to have been committed in the charging instrument. In addition, the greater offense contains an element additional to those which comprise the lesser offense—that the defendant be armed with a deadly or dangerous weapon.22 Accordingly, Assault with Intent to Commit a Felony was, in Roddy‘s case, an included offense of the Commission or Attempted Commission of a Felony while Armed with a Deadly Weapon.
3) Aiming a Weapon
The third instruction and form of verdict tendered by Roddy concerned the offense of Aiming a Weapon at Another. As defined in
Aiming a firearm (loaded or empty) - At another
- With intent
We find that this lesser offense was not included within the charged crime.
In the information, the State merely alleged generally that Roddy was “armed” with a shotgun, not specifically that he pointed the weapon at gas station attendant Hall. The term “armed” does not import a pointing of the weapon; rather, it simply alleges Roddy‘s possession of the shotgun at the scene of the crime charged.24 Nor did the State link the allegation that Roddy was “armed” with the allegation that Roddy employed “violence” or “fear” in the commission of the greater offense. In sum, the allegations merely imply that Roddy may have pointed the gun at Hall, an implication insufficient to charge the commission of the lesser offense. As it was not alleged to have been committed, the lesser offense was not an “included” one. The trial court thus properly refused to instruct the jury on the offense of Aiming a Weapon, notwithstanding the fact that the evidence clearly revealed that Roddy did aim the shotgun at Hall. Compare Allison v. State, supra.
While Aiming a Weapon was not, in Roddy‘s case, an “included” offense, we have previously concluded that the lesser offenses of Assault and Assault with Intent to Commit a Felony were “included” within the charged crime, as it was allegedly committed. In order to determine whether instructions and forms of verdicts regarding those offenses should have been given to the jury, we must subject them to the second step of the Lawrence inquiry. We first examine the purpose and methodology of that step.
STEP TWO
A) Purpose and Methodology
Step two of the Lawrence inquiry is designed to insure that the final instructions which are given to the jury conform to the issues and evidence before it. Harris v. State (1977), Ind., 366 N.E.2d 186, 188. To guard against a violation of this long-standing principle, the trial court examines that evidence which tends to prove or disprove the commission of the elements which compose the greater and lesser included offenses. Based on its examination, the trial court should instruct the jury on the lesser included offense only when it finds that there is “evidence of probative value from which the jury could properly find the defendant guilty of such lesser included offense.” Lawrence v. State, supra, at 213, quoting Hash v. State (1972), 258 Ind. 692, 698, 284 N.E.2d 770, 774 (DeBruler, J., dissenting).
We note that a literal application of the above-quoted test would in most cases require trial courts to instruct the jury on lesser offenses which were found to be “included” within charged offenses. By definition, a lesser included offense is composed of elements which comprise a portion of the greater offense. Consequently, that evidence which the State presents in support of the charged offense will usually indicate the commission of those elements which constitute the lesser included offense.25 For example, in a trial wherein the defendant faces a charge of Robbery, the evidence presented to establish the requisite “taking” will also establish the commission of Theft, an inherently included lesser offense. Gregory v. State (1973), 259 Ind. 652, 656, 291 N.E.2d 67, 69; Hitch v. State (1971), 259 Ind. 1, 15, 284 N.E.2d 783, 791. The test is not so simple, however. A trial court should not give an instruction and form of verdict on a lesser included offense simply because the evidence indicates that the defendant committed the lesser offense in the process of the acts for which he or she was charged.
To be sure, the evidence must establish the commission of the elements which comprise the lesser included offense in order for an instruction and form of verdict on that offense to go to the jury. However, the major focus of the evidentiary test is not on the elements of the lesser offense, but rather on the element(s) which distinguish(es) the offense charged from the lesser included offense. If the evidence which indicates that the defendant did in fact commit the distinguishing element is uncontroverted, then the instruction on the lesser included offense should not be given to the jury. If, however, as the Court stated in Lawrence, evidence of probative value raises a “serious dispute” regarding
We emphasize that the Supreme Court‘s use of the expression “serious dispute” was not intended to suggest that the standard for determining when a jury should be instructed on a lesser offense is an arbitrary one. If a trial court was permitted to accept or refuse a tendered instruction upon the basis of its subjective appraisal of the seriousness of a dispute, it would be empowered to intrude upon the exclusive province of the jury to determine the facts.
“Under the evidence of this case, we think there was no error in refusing the defendant‘s tendered instruction. . . .
“All of the State‘s evidence pointed to the guilt of the defendant as charged. In addition to the evidence previously related, a pistol was found hidden in the upholstery of the rear seat of the automobile where the defendant was arrested shortly after the robbery and slaying. The ballistics evidence was that two of the bullets found embedded in the deceased‘s body had been fired from that pistol. The only defense evidence was that of insanity, and the defendant‘s testimony was that he remembered nothing of the incident. There was, therefore, no evidence to which the included offense instruction was applicable. Hash v. State (1972), [258] Ind. [692], 284 N.E.2d 770; Cole v. State (1922), 192 Ind. 29, 134 N.E. 867. . . .”
Hester v. State, supra, 315 N.E.2d at 354. In those cases cited by the Court in Hester, trial courts’ refusals of instructions were upheld on the basis that there was no evidence to controvert the state‘s proof that the defendant had committed the element(s) which distinguished the greater and lesser offenses. Hash v. State (1972), 258 Ind. 692, 698, 284 N.E.2d 770, 774 (“a void as to any probative evidence . . .“);28 Cole v. State (1922), 192 Ind. 29, 36, 134 N.E. 867, 869 (“there being no evidence whatsoever. . .“).
The test employed in step two of the Lawrence inquiry serves two significant purposes. First, it lessens the possibility of compromise verdicts between those jurors who believe the defendant guilty of the offense charged and those who believe him not guilty. Lawrence v. State, supra, at 213. It is axiomatic that if no dispute exists with regard to the elements which distinguish the greater offense from the lesser, the defendant is either guilty of the offense charged or not guilty of any offense. Second, the test effectuates a strict application of the long-standing principle that an instruction upon an issue should not be given to the jury unless there is evidence to support it. Hash v. State, supra; Cole v. State (1922), 192 Ind. 29, 36, 184 N.E. 867, 870. In other words, unless a serious dispute is raised regarding whether the defendant committed the distinguishing element(s), there is no indication that the defendant‘s culpability, if at all, is limited to the lesser offense. A jury verdict to the effect that the defendant was guilty only of the lesser offense would simply be inconsistent with the evidence—and hence, an improper instruction. Hash v. State, supra; Sherwood v. State (1961), 241 Ind. 215, 170 N.E.2d 656, 658.
In our earlier treatment of Roddy‘s contention that the evidence was insufficient to support his conviction, we discussed only the evidence most favorable to the State, as per the appropriate scope of appellate review for that question. Roddy presented no evidence in his own behalf, nor did his cross-examination of the State‘s witnesses reveal contradictions or inconsistencies in their testimony concerning Roddy‘s commission of the essential elements of the charged offense. That evidence presented at the outset of this opinion thus forms the framework for our application of step two of the Lawrence inquiry.
Three elements distinguish the included offense of Assault from the charged offense of Committing or Attempting to Commit a Felony while Armed: (1) The taking or attempt to take (2) an article of value (3) from another. The evidence regarding Roddy‘s commission of these elements is undisputed. Gas station attendant Hall testified that Roddy pointed a shotgun at him and announced that “it was a stick up.” The consummation of the “taking” was frustrated when Hall closeted himself behind a locked steel door. As there was no evidence to indicate that Roddy‘s acts were limited to the commission of an Assault, the included offense, the trial court properly refused to instruct the jury on that offense.
Even if the evidence did reveal a dispute concerning Roddy‘s commission of the distinguishing elements, however, a second basis supports the trial court‘s refusal to instruct the jury on that offense. Notwithstanding the fact that the commission of an assault was alleged in the charging instrument, the evidence was insufficient as a matter of law to establish that the assault in fact occurred.29 Although it was alleged in the charging instrument that Roddy employed “violence” in the commission of the charged offense, the evidence does not support that allegation. Rather, it merely indicates that Roddy pointed the shotgun at Hall. There was no evidence that the gun was loaded at the time of the pointing, or that the safety had been released. The absence of these circumstances would preclude a conviction for Assault. Jarman v. State (1977), Ind., 368 N.E.2d 1348, 1350, rev‘g Ind.App., 363 N.E.2d 1084. In Jarman, the Court predicated its decision that pointing a firearm at another constituted an Assault on evidence which indicated that at the time of the pointing, the gun was loaded and the safety was released. Absent such evidence, the Court indicated that the “present ability” and “attempt” to do violent injury to another, requisites to the commission of Assault, would not be satisfied.
Inasmuch as the evidence was insufficient as a matter of law to establish the commission of the offense of Assault, the trial court properly refused to instruct the jury on the included offense of Assault with Intent to Commit a Felony. The jury could not properly have found Roddy guilty of that crime, since the assault necessary for a conviction of that offense, albeit an included one, was not committed.
Affirmed.
GARRARD, P. J., concurs with opinion.
GARRARD, Presiding Judge, concurring.
I concur with part I and with Judge Staton‘s analysis as to when it is proper to give a lesser offense instruction.1 I also concur in the analysis that the offense of aiming a weapon was not inherently included in the charged offense nor was it sufficiently charged by the language of the information to satisfy the requirements of Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686.
However, my reasons for finding no error in the court‘s refusal to instruct on assault or assault with intent to commit a felony differ from those of Judge Staton.
Unlike common law assault the statutory crime of assault requires the attempt to commit a violent injury upon the person of another.
Under the evidence presented at trial Roddy did not commit a battery nor did he actually attempt to commit a violent injury on anyone. Accordingly, pursuant to Hash v. State (1972), 258 Ind. 692, 284 N.E.2d 770, these instructions were properly refused.
Notes
I. STEP ONE
A. Purpose:
To ascertain whether the lesser offense is “included” within the crime charged.
B. Methodology:
- Examine the statutes which define the two offenses, together with the allegations of fact contained in the charging instrument.
- Determine:
- Whether every essential element of the lesser offense was allegedly committed during the course of the charged crime? and
- Whether each essential element of the lesser offense constitutes an essential element of the greater offense, as it was allegedly committed? and
- Whether a conviction of the charged offense requires proof of an element additional to those which comprise the lesser offense?*
- If:
- All conditions are satisfied, subject the included offense to step two.
- If any of the above conditions are not satisfied, the inquiry ends. A defendant could not be properly convicted of the lesser offense.
* Effective October 1, 1977, an included offense may be comprised of all the elements which comprise the greater offense. See footnote 11, infra.
II. STEP TWO
A. Purpose:
To insure that the instructions and form verdicts which are given to the jury conform to the evidence.
B. Methodology:
- Examine the evidence which tends to prove or disprove the commission of the elements which comprise the charged and included offenses.
- Determine:
- Whether there is evidence of probative value to establish the defendant‘s commission of all elements of the included offense?
- If not, no instruction and form of verdict on the included offense should be given. The inquiry ends.
- If so, subject the included offense to step 2(b) of the inquiry.
- Whether the evidence reveals a “serious dispute” regarding the defendant‘s commission of the element(s) which distinguish the greater and lesser included offense?
- If not, no instruction and form of verdict on the included offense should be given to the jury.
- If so, an instruction and form of verdict on the lesser included offense should be given to the jury.
- Whether there is evidence of probative value to establish the defendant‘s commission of all elements of the included offense?
We note that this definition does not require that the lesser offense be composed of fewer elements than the offense charged, as was required prior to the revision. Watford v. State, supra, 143 N.E.2d at 407.“‘Included offense’ means an offense that: “(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged; “(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or “(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.” (Emphasis added.).
“Commission of or attempt to commit crime while armed with deadly weapon.—Any person who being over sixteen [16] years of age, commits or attempts to commit any felony while armed with any dangerous or deadly weapon . . . shall be guilty of a separate felony . . . .”
“Robbery—Physical injury inflicted in robbery or attempt.—Whoever takes from the person of another any article of value by violence or by putting in fear, is guilty of robbery.”
“Whoever, having the present ability to do so, attempts to commit a violent injury upon the person of another, is guilty of an assault . . . .”
“Whoever perpetrates an assault or assault and battery upon any human being with intent to commit any felony other than a felonious homicide shall, on conviction, be imprisoned in the state prison for not less than one [1] nor more than ten [10] years.”
“It shall be unlawful for any person over the age of ten [10] years, with or without malice, purposely to point or aim any pistol, gun, revolver or other firearm, either loaded or empty, at or toward any other person; and any person so offending shall be deemed guilty of an unlawful act . . . .”
262 Ind. at 289, 315 N.E.2d at 354, quoting Cole v. State, supra, 134 N.E. at 870. In short, it is not the court‘s duty to “suggest to the jury that they may decide otherwise than according to the law.” Cole v. State, supra.““‘A jury might have power to stultify itself by returning a verdict contrary to what it knew to be the law * * *. But the court, when giving instructions, is not required to insult the jurors by a suggestion that they may do so.‘“” (Citations omitted.).
Without expressly stating so, Indiana Courts have applied the standard to the refusal and acceptance of instructions on lesser included offenses, as the examples in the text illustrate. See Hester v. State, infra; Hash v. State, infra; and Cole v. State, infra. As the Court in Hash noted, a dispute regarding the element(s) which distinguish(es) the offense charged from the lesser and included offense may arise in two ways: (1) When the distinguishing element is one requiring an overt act, the evidence may reveal a conflict regarding whether that act was committed. See, e. g., Lawrence v. State, supra; or (2) A dispute may arise when the distinguishing element involves a state of mind (e. g., intent) and the evidence does not reveal an uncontroverted overt act from which the jury could reasonably infer that the defendant‘s mental state was consonant with that required for the charged offense. Hash v. State, supra.““‘It is the right of a party,’ said this court in Banks v. State (1901), 157 Ind. [190] 203, 60 N.E. [1087] 1092, ‘in either a civil or criminal prosecution to endeavor to maintain his theory of the case, and for that purpose he should be permitted to give to the jury any and all competent evidence which tends to support the same; and where any evidence has been introduced which tends to sustain such theory, it is also his right to have the jury fully advised upon the law in relation thereto by proper instructions.‘“”