The indictment charged a theft offense while having a deadly weapon under subsection (1) of R. C. 2911.01. It was a straight possessory charge containing no suggestion of any use of the weapon or threat to use it or otherwise inflict harm. It contains *Page 143 no elements of subsection (2) of R. C. 2911.01 other than the theft.
Simple robbery under R. C. 2911.02 requires a theft offense and the use or threats to use force, elements not contained in or essential to conviction under R. C. 2911.01 (1).
To constitute a lesser offense all elements must be included in the offense charged and this is not the situation presented here by the amendment before trial. If the defendant didhave the gun in his pocket he could be guilty of subsection (1) without evidence of use or threats to use it. Mere possession, not use, is the thrust of Subsection (1).
This may be a strict construction of the publicly accepted idea of a robbery situation; however, this is a criminal case in which a strict construction is required. The changes in the new code indicate a clear legislative policy on the possession of the weapon phase of robbery and he strict requirement as to the weapon alone has spawned problems where the "deadly" weapon is not used or even alleged to have been used for any purpose. We cannot add an element to subsection (1) of R. C. 2911.01 without amending the statute, a function reserved for the legislature and never delegated to the courts.
In the instant situation we are limited to the allegations of the indictment and may not refer to the evidence introduced after the charge was changed to a different offense arising under subsection (2) which sets forth another essential element not included in subsection (1) and not alleged in the indictment.
The distinction between the two subsections of R. C. 2911.01 was discussed in State v. Stillguess, unreported, Second Appellate District, No. 77 C. A. 3, decided August 9, 1977. In that case the indictment was drafted under subsection (2) and, after the evidence showed a weapon was involved, it was amended to remove that offense and to allege the elements of subsection (1), constituting a separate offense.
I agree that the fifth assignment of error should be sustained. *Page 144