# Carter v. State

> Indiana Court of Appeals · December 29, 1972 · 155 Ind. App. 10

URL: https://www.frixlaw.com/law-library/cases/9738299

## Case

- **Full name:** Walter Carter, Vernon Cole v. State of Indiana
- **Court:** Indiana Court of Appeals
- **Decided:** December 29, 1972
- **Citations:** 155 Ind. App. 10; 291 N.E.2d 109; 1972 Ind. App. LEXIS 698
- **Precedential status:** Published
- **Opinion:** Concurrence by Sullivan
- **Judges:** Buchanan, Sullivan, White
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9738299

## Opinion text

Concurring Opinion
Sullivan, J.
I concur in the decision and opinion of Presiding Judge Buchanan with a single exception.
*22 I am unable to rationalize a point of distinction made by Presiding Judge Buchanan with respect to Miller v. State (1968), 250 Ind. 338 , 236 N.E.2d 173 . The primary opinion states:
“Note that Miller was charged with and convicted of the same crime, i.e., Theft of Stolen Property, and no question of a lesser included offense was in any way involved in this decision.”
The foregoing language takes cognizance of the following holding in the Miller case:
“To commit theft, § 10-3030, supra, requires either intent to deprive the owner permanently of the use and benefit of the property, or using, concealing or abandoning the property in such manner as knowingly to deprive the owner, or in such manner as will probably deprive the owner permanently of such use or benefit. This element of intent is not charged in the affidavit in this case and therefore, no crime is charged.” 250 Ind. 338, 346 .
I am unable to harmonize that language with the clear implication of Hitch v. State (1972), 259 Ind. 1 , 284 N.E.2d 783 , which upheld a conviction of Theft from the Person pursuant to an affidavit charging Robbery. The affidavit did not allege “intent to deprive the owner of the use or benefit” of the property taken, an essential element of the offense, other than as such allegation may be implicit in an allegation that the defendant did “feloniously . . . take . .
It is the fact that the charge involved in the appeal before us includes the word “feloniously” which in my view, provides the only basis for distinction from Miller v. State, supra, and which by virtue of Hitch permits affirmance of the conviction below notwithstanding the failure of the indictments here to specifically allege an intent to deprive the owner of the use or benefit of the property.
I note that the charging affidavit in Miller v. State alleged that the act was “unlawfully” committed rather than “felon-iously”. Such linguistic variation is fragile underpinning for *23 distinguishing that case from Hitch and from the case before us. Mann v. State (1933), 205 Ind. 491 at 494 , 186 N.E. 283 at 284 .
It is my belief that the Hitch decision impliedly overruled Miller v. State, supra to the extent hereinbefore discussed. To reason otherwise is to uphold convictions of an offense, e.g., Theft, necessarily included in a greater offense charged, e.g., Robbery, notwithstanding the failure of the charge to specifically include an essential element of the lesser offense (e.g., intent to deprive use or benefit), yet on the other hand, strike down convictions of the same crime (i.e., Theft) upon the reasoning that the affidavit or indictment failed to include an essential element (i.e., intent to deprive) solely because the crime charged and the crime of which the defendant is convicted is the same crime. Such an interpretation of Ind. Ann. Stat. § 9-1817 is not only legally inconsistent and illogical but is fundamentally unfair and of questionable constitutionality.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9738299. Public record. Not legal advice.