dissenting.
I respectfully dissent.
Art. 1, ¶ 13, Constitution of Indiana reads as follows:
“Rights of accused. — In all criminal prosecutions, the accused shall have the right ... to demand the nature and cause of the accusation against him, and to have a copy thereof; ... . ” (Emphasis supplied.)
I agree with the majority that the failure of an information or indictment to sufficiently notify a defendant of the specific charges made against him is fundamental error and should be raised sua sponte by a court on appeal in a proper case. We do not have that kind of case before us, however.
Clearly, battery, class C felony is not a necessarily lesser included offense of robbery, class A felony. However, if an indictment or information sufficiently alleges the elements of a lesser offense so as to put the defendant on notice in order that he may prepare a defense against it, the information is sufficient. Gutowski v. State, (1976) 170 Ind.App. 615, 354 N.E.2d 293, 297-298. The information here sufficiently notified Garcia of the charges made against him by the State, including the offense of battery resulting in serious bodily injury, a class C felony. The constitutional mandate was satisfied.
The word “feloniously” was used twice in the information, first in charging class A felony robbery, and next to characterize the causation of Soto’s bodily injury by Garcia. To charge class A felony robbery, the State could merely allege bodily injury or serious bodily injury to Soto without more, but it chose to characterize the causation of Soto’s injuries. In that regard, the State used the following language in the information:
“. . . the said ERNEST GARCIA did then and there and thereby unlawfully and feloniously cause bodily injury to the said RICARDO SOTO, . . .. ” (Emphasis supplied.)
The majority notes similar language in Nye v. State, (1971) 256 Ind. 219, 267 N.E.2d 842 and Allison v. State, (1973) 157 Ind.App. 277, 299 N.E.2d 618, was insuffi*1213cient to inform the defendant he had been charged with Aggravated Assault and Battery. When the courts decided those cases in 1971 and 1973, any allegation the defendant “feloniously caused bodily injury” was too general a description to adequately distinguish which of several charges might have been intended. At least three possibilities existed: Assault and Battery with Intent to Kill, Ind.Code 35-13-2-1 (repealed by Acts 1976, P.L. 148, § 24); Assault and Battery with Acid, Ind.Code 35-13-1-1 (repealed by Acts 1976, P.L. 148, § 24); or Aggravated Assault and Battery, Ind.Code 35-13-3-1 (repealed by Acts 1976, P.L. 148, § 24).
Moreover, that a crime was described as “felonious” did not indicate whether the defendant was accused of causing “serious bodily injury” (necessary for a charge of Aggravated Assault and Battery) or merely “bodily injury” (sufficient for a charge of Assault and Battery with Intent to Kill). The term “felonious” did very little more than indicate the severity of the penalty. It certainly did not inform the defendant of the nature of specific charges. That was no longer true when Garcia was charged with feloniously causing bodily injury in 1979.
Indiana recodified its criminal code in 1976 and bodily injury crimes were classified as misdemeanors or felonies according to the presence or absence of specific elements, including serious bodily injury. At the time of Garcia’s arrest, an accusation of causing the kind of bodily injury which was classified as a felony could have meant only that his victim was a police officer or under 13 years of age, or the injuries were serious or caused by a deadly weapon. Ind.Code 35-42-2-1 (1979) (amended 1981). Where there was no allegation the victim was a police officer or a child or that the acts of the defendant were reckless under Ind.Code 35-42 — 2-2, the charge of “feloniously causing bodily injury” identified only one Indiana statute:
“IC 35-42-2-1. Battery. — (3) A Class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon.”
Because the Criminal Code changed markedly after the Nye and Allison decisions, a description of a bodily injury crime as “felonious” necessarily carried legal significance at the time of Garcia’s arrest. It triggered the classification scheme of the Code and served to narrow rather than to enlarge the field of possible crimes. The prosecutor’s information charged Garcia with inflicting on Ricardo Soto bodily injury of the type which was classified as a felony under the Indiana Code. The only bodily injury so classified was serious bodily injury or injury inflicted with a deadly weapon. IC 35^42-2-1(3). That was a class C felony and was the crime for which he was convicted.
While the addition of the adjective “serious” to the description of bodily injury in the information would have been wise and appropriate, it was not fatal to the pleading and there is no reason to find this charging information more obscure than it actually was at that time.
It is not necessary that each and every element of a lesser included offense be spelled out in an indictment or information as though it were the sole offense charged to fulfill constitutional notice requirements. Carter v. State, (1973) 155 Ind.App. 10, 291 N.E.2d 109, 113; Chandler v. State, (1895) 141 Ind. 106, 39 N.E. 444; State v. Anderson, (1885) 103 Ind. 170, 2 N.E. 332. In my opinion, the information sufficiently informed Garcia the State was charging him with battery, class C felony, in addition to robbery, class A felony.
The evidence plainly supported the jury’s verdict finding him guilty of battery, class C felony. Soto suffered serious bodily injury because of Garcia’s attack during the robbery.
I would affirm the conviction.