¶1Dissenting Opinion
¶2It seems to me that the issue of whether or not simple theft of under $100.00 carrying a maximum penalty of one to five years is a lesser and included offense of robbery should be decided upon the basis of the body of the law contained in Watford v. State (1957), 237 Ind. 10, 143 N. E. 2d 405; Hobbs v. State (1969) 253 Ind. 195, 252 N. E. 2d 498; and Thomas v. State (1970), 254 Ind. 600, 261 N. E. 2d 588, cited in the State’s brief. In Watford, the Court examined the two statutes alone to see whether one was a lesser and included offense of the other. In Hobbsand Thomaswe examined the two statutes and the charging affidavit or indictment to determine whether one was a lesser and included offense of the other. As I understand this majority opinion, it adopts a new test for determining the issue, and that is that we must examine all the evidence given at trial to determine whether one of two offenses is necessarily included in the other. I would not vote to adopt this test.
¶3Contrary to the Statement contained in the majority that we have not considered adopting the “look to the evidence test,” I would quote from my own dissent in Thomas:
“I concede that a different result would be reached were we to look to the evidence actually introduced at the trial. However the majority opinion does not adopt such a test and I believe rightly so.”
¶4In support of my view not to take the step recommended by this majority opinion, I would point out the following:
¶51. The statute on lesser included offenses specifically authorizes judges and juries to find a defendant guilty “of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or affidavit.” (Emphasis added.) I.C. 1971, 35-1-39-2, being Burns § 9-1817. The test required by this statute ignores the evidence at trial.
¶6*7002. How can it be said that one who takes $40.00 from the person of another by violence and putting in fear, has not necessarily exerted unauthorized control over the property of another intending to deprive the owner permanently of the money? It is utterly impossible to commit a robbery without also committing a simple theft.
¶73. Appellant points out that petit larceny was a lesser and included oifense of robbery.
¶84. I do not believe a distinction can be made between overt acts which tend to show criminal intent and overt acts tending to show any other element of the crime charged. Under the majority test a trial court could properly refuse to give an instruction on theft under $100.00 where the theft charged was a gun of the value of $200.00 and the evidence before the j ury on the issue of value was the gun itself and the testimony of an expert witness that the value of the gun was $200.00, if in the judge’s mind the gun itself was worth $200.00. Such a result imperils the right to trial by jury.
¶95. If the lesser included offenses are to be contained in the preliminary instructions to the jury, then the trial judge cannot know how to instruct since the evidence is not in.
¶106. Cole v. State (1921), 192 Ind. 29, 134 N. E. 867, cited by the majority holds that second degree murder and manslaughter are not lesser included offenses of first degree felony murder. In felony murder the intent to kill is not an element of the oifense and therefore second degree murder and manslaughter are properly not lesser and included. This holding in no way supports the adoption of the evidence test.
¶117. Surely due process of law requires that the defendant in a criminal case know the offenses with which he is charged and against which he must defend before the State rests its casein-chief. The defendant cannot know this if the evidence bears on the issue of what is an included offense.
¶12Note. — Reported in 284 N. E. 2d 770.