Dissenting Opinion
Achor, J.As stated in the majority opinion, appellant in Count II of the indictment was charged with robbery by violence and putting in fear. The jury returned a verdict finding appellant guilty “as charged in Count II of robbery by putting in fear."1 In the majority opinion, it is stated that the words “by putting in fear” should be treated as surplusage and given no consideration. The cases of Burnett v. State (1954), 233 Ind. 651, 122 N. E. 2d 468, and Moore v. State (1947), 225 Ind. 357, 75 N. E. 2d 193, are cited as supporting this position.
However, in my opinion, the cases of Burnett and Moore, supra, are not decisive of the proposition for which they are cited. In those cases the words “disregarded as surplusage” are not words of the same character as those involved in the present case. In Moore, supra, the jury appended to their verdict an extra judi*406cial resolution recommending a suspended sentence. Such an addition, under the facts of the case in which it was attempted, involved a statement which was beyond the jury’s scope of determination and was therefore corrected by order of the court prior to the discharge of the jury involved.
In the Burnett case, supra, the surplus clause was “and that he pay a fine in the sum of none dollars.” That case involved a verdict finding appellant guilty of petit larceny. Under the statutes then in effect such an offense was a reducible felony and the jury could either fix punishment as for a misdemeanor or as for a felony. See: Burns’ Ind. Stat. Anno. §10-3002 (1956 Repl.) [Acts 1929, ch. 156, §2, p. 487.] Where the jury elected to treat the offense as a felony, this verdict was to be limited to a finding of guilt and a finding as to defendant’s age. See: Burnett v. State, supra, at pp. 654-655. The final form of the verdict involved in that case contained the finding of guilt, and further found defendant’s age to be 35. The surplus clause was then appended. Since, however, the jury had clearly shown its intent that the offense be treated as a felony the appended clause was both meaningless and beyond the scope of the jury’s authority.
It is elemental that a verdict must conform with the charge made and must be sustained by the evidence.
In the present case involving a charge of robbery, violence and putting in fear are alternative elements, either of which will sustain a conviction.
The statute defining the offense of robbery, under which appellant was charged, provides:
“Whoever takes from the person of another any article of value by violence or by putting in fear, is guilty of robbery, ...” Burns’ Ind. Stat. Anno. §10-4101 (1956) Repl.). [Emphasis Added]
In support of the issue that violence or putting in *407fear are alternative elements to the crime of robbery, this court in the case of Hazlett v. State (1951), 229 Ind. 577, 583-584, 99 N. E. 2d 743, stated:
“At common law ‘Every robbery requires either actual violence inflicted on the person robbed, or such demonstrations or threats as under the circumstances create in him a reasonable apprehension of bodily injury. There need not be both.’ 2 Bishop, Criminal Law (9th Ed.), §1166, p. 864. The statutory definition of the crime in 1860 was in the alternative, and was so construed in Seymour v. State (1860), 15 Ind. 288, 290, wherein the court said: ‘ “The words of the definition of the crime, are in the alternative, violence or putting in fear; and it appears that if the property be taken by either of these means, against the will of the party, such taking will be sufficient to constitute robbery.” U. S. Cr. Law, 458; 3 Arch. Cr. Pl. by Wat. 417, and 418.’ Section 10-4101, Burns’ 1942 Replacement, clearly states that robbery may be effected either ‘by violence’ or ‘by putting in fear.’ See Ewbank, Indiana Criminal Law, §913, pp. 703, 704; Clark & Marshall, Law of Crimes (2d Ed.), §370, p. 548; 2 Wharton, Criminal Procedure (10th Ed.), §1213, p. 1667....”
We are aware that the cases have described “putting in fear” as constructive violence. Hazlett v. State, supra; Cross, Jr. v. State (1956), 235 Ind. 611, 137 N. E. 2d 32. However, this does not change the fact that violence or putting in fear are distinct elements of the crime which must be sustained by the evidence and that the verdict must conform to the evidence. Constructive violence is merely a fiction of the law which must be supported by evidence of a “putting in fear,” whereas, violence is a veritable fact with regard to which a charge, the evidence, and the verdict must conform.
In order for the words “by putting in fear,” as used in the verdict, to be considered surplusage, it would be necessary that they be merely a meaningless characterization by the jury of what was charged in Count II, and *408proved by the evidence. However, in this case the express inclusion of one alternative element in the verdict —robbery by putting in fear — could reasonably be construed as constituting a qualification or limitation by the jury upon the general verdict to the exclusion of the alternative — a finding of guilty of robbery “by violence.” It is my opinion that under these circumstances we must consider the verdict in the light of this alternative expressly stated in the verdict.
We therefore examine the evidence to determine whether there was any evidence to sustain a verdict that the taking was consummated as the result of putting the prosecuting witness in fear. In the majority opinion it is stated that there was sufficient evidence to believe that the prosecutrix would have been put in fear, citing Cross, Jr. v. State, supra; Koby v. State (1935), 209 Ind. 91, 198 N. E. 88. The cited cases support the proposition that fear is constructive violence; but there is no support for the converse of that proposition where the violence is committed without the victim being aware of any impending attack. In each of the cited cases there was clear testimony by the victim as to his frightened state of mind, prior to the taking; but the present case contains no evidence of fear on the part of the victim as related to the robbery charged.
Indeed, all the evidence in the case is to the effect that the prosecutrix, who had been sitting with appellant in a bar, knew nothing of appellant’s behavior— from the time appellant complained that she had given another man a dime but would not give him money to retrieve his clothes from the cleaners, until she awakened in the hospital. There is no evidence upon which to base a finding of “putting in fear,” constructive or otherwise. Consequently, in my opinion the judgment on *409the verdict as rendered is not supported by any evidence and should be reversed for that reason.
Furthermore, in my opinion the verdict, if not patently erroneous, was ambiguous. Under such circumstances this court has held that when there is an ambiguity in a verdict, the verdict must be construed in favor of the defendant. Martin v. State (1959), 239 Ind. 174, 154 N. E. 2d 714. The ambiguity in Martin is strikingly similar to the one here involved. In Martin, the charge was assault and battery with intent to gratify sexual desires. This court held that a verdict of “guilty of assault and battery as charged in count one of the affidavit” constituted a verdict of guilty of the lesser included offense of assault and battery.
Resolving the ambiguity of the jury verdict in the present case in the same manner (favorable to the defendant), the verdict of the jury would be construed as finding appellant guilty of robbery by putting in fear and not guilty of “robbery by violence.” As previously noted, it is my opinion that there was no evidence that the robbery was perpetrated by putting in fear.
Note. — Reported in 206 N. E. 2d 143.
. Count II reads in relevant part as follows:
“Comes now GERTRUDE WOODS, who being first duly sworn and upon her oath deposes and says:
“That on or about the 9th day of January, 1963, A.D., at and in the County of St. Joseph, State of Indiana, one HERMAN LEWIS PAYTON did then and there unlawfully, feloniously and forcibly and by violence and putting GERTRUDE WOODS in fear rob, take and steal from the said GERTRUDE WOODS, .....” (Emphasis added)