Volume 241 — Indiana Reports

1. CRIMINAL LAW — <italic>Lesser Included Offenses — Statutes.</italic> — 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. If a party is charged with a given crime, he cannot be convicted of another crime of lesser magnitude under provisions of Section 9-1817, Burns' 1956 Replacement, unless a conviction of the crime charged necessitates proof of all the essential elements of the lesser offense, together with the added element which makes the difference in the two offenses. p. 229. 2. CRIMINAL LAW — <italic>Lesser Included Offenses — Automobile</italic> <italic>Banditry.</italic> — Other felonies, which are the basis for the charge of automobile banditry, can be considered as included offenses within the principal charge of automobile banditry. p. 229.<page_number>Page 226</page_number> 3. CRIMINAL LAW — <italic>Lesser Included Offense — Automobile Banditry</italic> <italic>— Second Degree Burglary — Entering To Commit a Felony.</italic> — The offenses of second degree burglary and entering to commit a felony charged in the instant affidavit, wherein the principal charge is automobile banditry, are included offenses of automobile banditry. p. 230. 4. CRIMINAL LAW — <italic>Lesser Included Offense — Automobile Banditry</italic> <italic>— Felony — Third Degree Burglary — Misdemeanor.</italic> — Since the offense of third degree burglary is only a misdemeanor and the offense of automobile banditry requires the commission or attempted commission of a felony, the commission of third degree burglary could not be the basis for a charge of automobile banditry. Neither is third degree burglary an element of automobile banditry as defined by Section 10-4710, Burns' 1956 Replacement, and as charged in the instant affidavit and therefore, it could not be included in the offense of automobile banditry. p. 230.