Barker v. State, No. 29554

Docket NºNo. 29554
Citation238 Ind. 271, 150 N.E.2d 680
Case DateMay 22, 1958
CourtSupreme Court of Indiana

Page 680

150 N.E.2d 680
238 Ind. 271
Robert Howard BARKER, Appellant,
v.
STATE of Indiana, Appellee.
No. 29554.
Supreme Court of Indiana.
May 22, 1958.

[238 Ind. 273]

Page 681

William H. Sparrenberger, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Merl M. Wall, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge

The appellant was charged under Burns' § 10-3401 with murder in the first degree by stabbing one Robert Poland with a knife on the 25th day of August, 1956. He was tried by jury and found guilty as charged and sentenced to the Indiana State Prison for life. He appeals from this conviction. The motion for a new trial sets forth all the claimed errors, only four of which are given treatment in the argument section of appellant's brief.

The first point urged is that on the voir dire examination of the jury the trial judge stated to a prospective juror that under the first degree murder charge, the defendant could be found guilty of any included offense such as manslaughter, murder in the second degree and assault and battery with intent to kill, plain assault and battery or simple assault. The State objected to this remark and the court later stated; '* * * I shall so instruct the jury when the time comes, is second degree murder and manslaughter, as being the only included offenses.' The court later instructed the jury that second degree murder and manslaughter were the lesser offenses covered by the indictment.

The appellant, citing the case of Sullivan v. State, Ind.1957, 139 N.E.2d 893, contends very strenuously that the trial court was duty bound under the charge of murder to instruct the jury it could find the defendant guilty of any lesser included offense including assault and battery.

[238 Ind. 274] A consideration of Sullivan v. State, supra shows that that case pertains solely to a charge of manslaughter. The decision in that case holding in charges of manslaughter a defendant may be found guilty of any lesser included offense, is based upon the two Sections, 9-1816 and 9-1817, Burns' 1956 Replacement. Section 9-1816 reads as follows:

'Upon an indictment or affidavit for an affense consisting of different degrees, the jury may find the defendant not guilty of the degrees charged in the indictment of affidavit, and guilty of any degree inferior thereto or of an attempt to commit the offense.'

Page 682

The next section of this 1905 Act (Burns' § 9-1817) reads as follows:

'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 affidavit.'

The statute (Burns' § 10-3405) defining manslaughter, fixed no degrees of that offense. Therefore, under a court stating manslaughter, a defendant may be found guilty of a lesser offense included therein, as stated in Sullivan v. State, supra. However, in a case such as we have before us, in which the charge is first degree murder, the offense if stated in different degrees and the application of the statute is not the same as in the case where manslaughter is charged in a separate count. These sections of the 1905 Act with somewhat similar legislation (since repealed) have caused some confusion in the understanding of the earlier decisions of this court. Witt v. State, 1933, 205 Ind. 499, 185 NE. 645; Mack v. State, 1932, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. 1349.

[238 Ind. 275] The decisions must be read in the light of the statute applicable at the time.

Under an indictment charging a crime which has different degrees fixed by statute, a defendant may not be found guilty of any lesser included offense (other than a degree) unless such lesser included offense is stated in a separate court in the indictment or affidavit.

Our attention is directed to the case of Romeo v. State, 1930, 203 Ind. 116, 173 N.E. 324, 325, which holds that one may be found guilty of manslaughter under the sole charge of murder in the first degree. We have examined this case and find that it holds that 'on the trial of an indictment for murder there may be a conviction for voluntary of involuntary manslaughter.' The case sets out the two sections of Burns' §§ 9-1816 and 9-1817, set forth above, but without any analysis of the wording thereof. It holds in substance that manslaughter is a different degree of the crime of homicide. The case is based upon the common law as revealed by decisions prior to the enactment (1905) of the above quoted statutes, Burns' §§ 9-1816 and 9-1817. Prior to 1905 it was a well settled principle of the common law in this state that manslaughter was a lesser offense included in murder or homicide. Hasenfuss v. State, 1901, 156 Ind. 246, 251, 59 N.E. 463; Carrick v. State, 1862, 18 Ind. 409; Powers v. State, 1882, 87 Ind. 144; Pigg v. State, 1896, 145 Ind. 560, 43 N.E. 309; Moon v. State, 1852, 3 Ind. 438; Dukes v. State, 1858, 11 Ind. 557, 71 Am.Dec. 370; Reed v. State, 1894, 141 Ind. 116, 40 N.E. 525.

Likewise, in Fausett v. State, 1941, 219 Ind. 500,...

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57 practice notes
  • Wright v. State, Supreme Court Case No. 20S-LW-260
    • United States
    • Indiana Supreme Court of Indiana
    • May 4, 2021
    ...as if it entered ten years before.") There are, to be sure, some cases that come to the contrary conclusion. See, e.g. , Barker v. State , 238 Ind. 271, 279, 150 N.E.2d 680, 684 (1958) (finding it "difficult to conceive" that "premeditation may be practically simultaneous with the act of ki......
  • Ramirez v. State, No. 45S05–1305–CR–331.
    • United States
    • Indiana Supreme Court of Indiana
    • April 29, 2014
    ...e.g., Fox v. State, 457 N.E.2d 1088, 1093–94 (Ind.1984); Brown v. State, 245 Ind. 604, 607, 201 N.E.2d 281, 283 (1964); Barker v. State, 238 Ind. 271, 278, 150 N.E.2d 680, 684–84 (1958). Almost fifty years before Remmer was decided, Indiana courts would only entertain allegations of impermi......
  • Brown v. State, No. 29661
    • United States
    • Indiana Supreme Court of Indiana
    • December 17, 1958
    ...there must be sufficient time elapse after the formation of the intent to kill to deliberate thereupon. Barker v. State, Ind.1958, 150 N.E.2d 680; Heglin v. State, 1957, 236 Ind. 350, 140 N.E.2d There is no more reason to say you can eliminate the proof of premeditation in this case than to......
  • Robinson v. State, No. 2-1072A80
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1974
    ...higher crime of second degree murder. Furthermore, it has received recent approval by our state's highest court in Barker v. State (1958), 238 Ind. 271, 150 N.E.2d 680, and Mimms v. State (1967), 249 Ind. 168, 231 N.E.2d 151, although not in express reference to the rationale of our present......
  • Request a trial to view additional results
57 cases
  • Wright v. State, Supreme Court Case No. 20S-LW-260
    • United States
    • Indiana Supreme Court of Indiana
    • May 4, 2021
    ...as if it entered ten years before.") There are, to be sure, some cases that come to the contrary conclusion. See, e.g. , Barker v. State , 238 Ind. 271, 279, 150 N.E.2d 680, 684 (1958) (finding it "difficult to conceive" that "premeditation may be practically simultaneous with the act of ki......
  • Ramirez v. State, No. 45S05–1305–CR–331.
    • United States
    • Indiana Supreme Court of Indiana
    • April 29, 2014
    ...e.g., Fox v. State, 457 N.E.2d 1088, 1093–94 (Ind.1984); Brown v. State, 245 Ind. 604, 607, 201 N.E.2d 281, 283 (1964); Barker v. State, 238 Ind. 271, 278, 150 N.E.2d 680, 684–84 (1958). Almost fifty years before Remmer was decided, Indiana courts would only entertain allegations of impermi......
  • Brown v. State, No. 29661
    • United States
    • Indiana Supreme Court of Indiana
    • December 17, 1958
    ...there must be sufficient time elapse after the formation of the intent to kill to deliberate thereupon. Barker v. State, Ind.1958, 150 N.E.2d 680; Heglin v. State, 1957, 236 Ind. 350, 140 N.E.2d There is no more reason to say you can eliminate the proof of premeditation in this case than to......
  • Robinson v. State, No. 2-1072A80
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1974
    ...higher crime of second degree murder. Furthermore, it has received recent approval by our state's highest court in Barker v. State (1958), 238 Ind. 271, 150 N.E.2d 680, and Mimms v. State (1967), 249 Ind. 168, 231 N.E.2d 151, although not in express reference to the rationale of our present......
  • Request a trial to view additional results

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