Dissenting Opinion
DeBruler, J.The statutes relating to conviction for included offenses provides as follows:
“Upon an indictment or information for an offense consisting of different degrees, the jury may find the defendant not guilty of the degrees charged in the indictment or affidavit, and guilty of any degree inferior thereto or of an attempt to commit the offense.” IC 1971, 35-1-39-1, being Burns § 9-1816.
“In all other cases, the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information.” IC 1971, 35-1-39-2, being Burns § 9-1817.
Since it has been held that first degree felony murder does not *292consist of several degrees, Dull v. State (1962), 242 Ind. 633, 180 N.E.2d 523, it is Burns § 9-1817, above, which controls the issue of whether or not robbery is a lesser and included offense of felony murder robbery. This statute and its policies are of exceptional benefit to the entire criminal adjudicatory system, and as such warrants cautious interpretation. Benefits flow both to the State and to an accused. If the evidence of the crime charged is weak, yet at the same time it strongly supports a lesser and necessarily included offense, (this statute permits) the State to obtain a just conviction for the lesser offense. And in this same evidentiary situation, the statute protects the accused from an unjust conviction for the greater offense, because of the natural reluctance of a judge or jury to acquit an accused altogether where the evidence clearly shows the commission of a lesser crime of the same class. In recognition of the importance of this statute and in implementation of its policies, this Court has erected the principle that it is reversible error for a court to fail to give an instruction upon request of the accused, defining a crime which is lesser and included. Brown v. State (1972), 153 Ind. App. 114, 286 N.E.2d 201; Hatfield v. State (1962), 243 Ind. 279, 183 N.E.2d 198; Sullivan v. State (1957), 236 Ind. 446, 139 N.E.2d 893; Watford v. State (1957), 237 Ind. 10, 143 N.E.2d 405.
The interpretation given this governing statute by the majority here in reaching its conclusion that robbery is not an included offense of this charge, was first adopted in Hash v. State (1972), 258 Ind. 692, 284 N.E.2d 770. (DeBruler, J., dissenting). The holding there as I understand it, is that there must be evidence before the trial court which would support a guilty finding of the crime claimed to be lesser and included, before the failure to instruct on the lesser crime would be reversible error. In addition, of course, the lesser crime must be embodied in the statute defining the greater crime and in the charging indictment or information. The triple test would therefore be applied as follows:
*2931. Evidence:' There was evidence presented to the jury from which they could conclude that this defendant did take money from the clerk of the store by violence or by putting in fear. An instruction covering robbery would have been “applicable to the evidence” as required by Hash v. State, swpra.
2. Statute: The statute reads: “Whoever ... in the perpetration of or attempt to perpetrate a . . . robbery . . . kills any human being is guilty of murder in the first degree” (since re-enacted in amended form.) By its explicit terms, this statute embodies a completed robbery,
3. Charge: The felony murder indictment reads as follows:
“The Grand Jury of the County of Delaware for the 1971 Term, being duly sworn, empaneled and charged in the name and upon the authority of the State of Indiana, upon their oath charge and present that Charles Johnson, George Paul Hester, and James Berry, on or about the 11th day of February, 1971, at and in the County of Delaware, in the State of Indiana, did then and there unlawfully and feloniously take by use of violence and force United States Currency of the value of Two Hundred Forty-Three Dollars and Sixty-four Cents ($243.64.), the property of Miller Milkhouses, Inc., then and there in the custody of one Franklin Orvis Breedlove, being an employee of said Miller Milkhouses, Inc., said business being located at 1200 North Broadway, City of Muncie, County of Delaware, State of Indiana, the said George Paul Hester, being then and there armed with a dangerous and deadly weapon, to-wit: a small caliber pistol, the exact nature of which is unknown to the Grand Jury; and while being engaged in the commission of said robbery George Paul Hester did then and there unlawfully and feloniously shoot the said Franklin Orvis Breedlove in the head and body with said pistol, and thereby inflicted a mortal wound upon the said Franklin Orvis Breedlove, from which mortal wound, the said Franklin Orvis Breed-love then and there died on the 11th day of February, 1971. And so the Grand Jurors aforesaid, upon their oath aforesaid, do say and charge that the said Charles Johnson, George Paul Hester and James Berry, in the manner and form aforesaid, unlawfully and feloniously did kill and murder the said Franklin Orvis Breedlove, contrary to the form of the Statute in such cases made and provided and against the peace and dignity of the State of Indiana.” (Emphasis added.)
The italicized language of the above indictment constitutes *294a charge of robbery. The words “take” and “violence” are words taken directly from the robbery statute. This indictment embodies a completed robbery.
Upon application of this Court’s new test I can only conclude that robbery here is a lesser and included offense of felony murder robbery and that it was reversible error for the trial court to refuse defendant’s proffered instructions so indicating. Hatfield v. State, supra; Watford, v. State, supra.
This case cannot be distinguished from those cases which have held that when the offense of committing a crime while armed defined by IC 1971, 35-12-1-1, being Burns § 10-4709, has been charged, such charge embraces the particular crime being so committed as a lesser and included offense. Noel v. State (1971), 257, Ind. 299, 274 N.E.2d 245; Taylor v. State (1968), 251 Ind. 236, 236 N.E.2d 825; Cross v. State (1956), 235 Ind. 611, 137 N.E.2d 32; Carter v. State (1951), 229 Ind. 205, 96 N.E.2d 273; Kokenes v. State (1938), 213 Ind. 476,13 N.E.2d 524. This case is likewise indistinguishable and therefore controlled by Hatfield, West v. State (1961), 241 Ind. 225, 171 N.E.2d 259. There we held that second degree burglary was a lesser and included offense of automobile banditry (IC 1971, 35-12-2-1, being Burns § 10-4710) in a case in which it was charged that an automobile was used in the perpetration of a second degree burglary.
The majority may have been drawn into the erroneous conclusion they have reached by considering felony murder robbery to be essentially a homicide and the robbery to be essentially a crime against property and therefore of an entirely different type of crime. In my view felony murder robbery and robbery fall within the same class. In robbery, a zone of danger to human life and limb is created by one who carries out a plan to take something of value from a fellow human being by violence or putting him in fear and seeks thereafter to escape detection and arrest. In armed robbery, because of the use of a weapon, the zone of danger is increased in magnitude. And in felony murder robbery, the danger to *295those within this zone becomes manifest and the death of a human being occurs.
Upon the application of the relevant cases and the test as I see it, I relunctantly dissent in this case.
Note.—Reported at 315 N.E.2d 351.