Opinion
Michael T. Conway, Indianapolis, for appellant.
[173 Ind.App. 530] Theodore L. Sendak, Atty. Gen., K. Richard Payne, Deputy Atty. Gen., Indianapolis, for appellee.
[173 Ind.App. 538] LOWDERMILK, Judge.
ON APPELLANT'S PETITION FOR REHEARING
Appellant has filed his petition for rehearing and we believe it merits our writing thereon.
In our original opinion, Ind.App., 364 N.E.2d 772, this court determined that appellant's Issue Number Two in his brief which was "Did the court err in not instructing the jury about certain lesser included offenses for which the defendant tendered instructions" was waived by appellant's failure to set out his tendered instructions verbatim in his brief under Ind.Rules of Procedure, Appellate Rule 8.3(A)(7).
Even though the appellant failed to set out a copy of his tendered instructions in his brief the State of Indiana in its Answer brief set out a verbatim copy of said tendered instructions thus accomplishing the purpose of the rule.
In the case of Teeple v. State ex rel. (1908), 171 Ind. 268, 86 N.E. 49, wherein the sufficiency of Appellant's brief was questioned because of an omission of a ruling and exception thereto as required by the court's rule the court held, "It is not necessary to determine whether or not such ruling and exception thereto are sufficiently set forth in appellant's brief, because the relators have cured the defect, if any, in appellant's brief by copying the order-book entry of said ruling and appellant's exceptions thereto in their brief, thus accomplishing the purpose of the rule." See also, State v. Heslar (1972), 257 Ind. 625, 277 N.E.2d 796.
Appellant further contends that the tendered instructions were adequately identified by reference in his brief to them by referring to the transcript pages and lines.
To hold such to be good we must stretch the elasticity of AP 8.3(A)(7) to well nigh its breaking point. However such has been held to be adequate in Moore v. Funk (1973), 155 Ind.App. 545, 293 N.E.2d 534 at p. 536.
We therefore grant Appellant's Petition For Rehearing.
[173 Ind.App. 539] ON REHEARING
Appellant's tendered and refused instructions about which he complains were correct statements of the law.
The information on which appellant was tried charges him with the Commission of a Felony While Armed, to wit: Robbery which reads in part as follows: ". . . A handgun held in the hand of Clyde T. Arbuckle, . . . did then and there unlawfully, feloniously and forcibly by violence . . ." (Our emphasis)
Appellant's counsel has cited many cases defining for this court when a crime may properly be considered a lesser included offense of a crime charged. However in the interest of time we will not set out these definitions and application of the rule as it has been so well defined and set out in the landmark case of Hazlett v. State (1951), 229 Ind. 577, 99 N.E.2d 743.
In Hazlett v. State, supra, the late Judge Emmert in speaking for the court at 229 Ind. 585, 586, 99 N.E.2d 743, 746 said:
"The words of the affidavit, 'unlawfully, feloniously, and forceably and by violence,' charged a battery, and an assault which is included within the charge . . . of a battery. . . . The included offenses of assault or assault and battery with intent to commit a felony, as defined by § 10-401, Burns' 1942 Replacement (IC 35-1-54-3), were included in the charge of robbery by violence. . . . Appellant's requested instructions which would have informed the jury they could find the appellant guilty of assault and battery with intent to commit a felony should have been given.
A charge of assault and battery with intent to commit a felony 'necessarily embraces a charge of simple assault and battery.' . . . Since the battery was charged, the lesser misdemeanor of assault was included within the charge. . . . It was error for the trial court to refuse to give appellant's requested instructions on the included misdemeanors of assault and battery, and assault." (Citations omitted) (Our insertion)
See also, Hammer v. State (1976), Ind., 354 N.E.2d 170 at p. 173.
Appellant having tendered adequate instructions on lesser included offenses of the crime charged together with an instruction[173 Ind.App. 540] with forms of verdicts to be rendered on lesser included offenses was entitled to have the jury instructed as requested on lesser included offenses. It was the court's mandatory duty to submit them to the jury or give adequate instructions of his own on their subject matter. His failure to instruct on lesser included offenses was reversible error.
Judgment reversed and cause remanded for a new trial.
ROBERTSON, C. J., and LYBROOK, J., concur.