182 Ind. App. 156 - Roddy v. State

How this case has been cited

Cited by 111 later decisions — most recently April 2017 · most notably Wright v. State (1995), Averhart v. State (1984)

111 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

GARRARD, Presiding Judge,

¶1concurring.

¶2I 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.

¶3However, 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.

¶4Unlike common law assault the statutory crime of assault requires the attempt to commit a violent injury upon the person of another. IC 35-13-4-7 (repealed). The statute applicable to assault with intent requires the commission of an assault or assault and battery. IC 35-1-54-3 (repealed).

¶5Under 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.

¶6. An exception exists establishing voluntary manslaughter as a lesser offense in a charge of first or second degree murder despite the element of “sudden heat.” See Robinson v. State (Ind.App.1974), 309 N.E.2d 833, rev’d on other grounds, 262 Ind. 463, 317 N.E.2d 850; Holloway v. State (1976), Ind.App., 352 N.E.2d 523.