Hillard v. State

GARRARD, Presiding Judge.

Samuel Hillard was charged with burglary. Over the defense's objection the court charged the jury that they might convict Hillard of theft. This they did and Hillard appeals.

The underlying theft felony is, of course, a different offense from the burglary which preceded it.1 Thus, it is not a necessarily included offense in a burglary charge. See Quire, supra, holding the felonies of rape and robbery which were *1125charged as the intended felonies were not included offenses to the burglary charged; and Smith v. State (1985), Ind., 477 N.E.2d 857 holding attempted theft not…