Barker v. State

Decision Date22 May 1958
Docket NumberNo. 29554,29554
Citation238 Ind. 271,150 N.E.2d 680
PartiesRobert Howard BARKER, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

William H. Sparrenberger, Indianapolis, for appellant.

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


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.

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.'

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.

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, 504, 39 N.E.2d 728, 730, this court reached the same result:

'It has been many times held by this court that a charge of murder in the first degree comprehends every grade of felonious homicide. The crime of first degree murder where, as here, the commission of the offense was by means of a shotgun, would naturally include the unlawful pointing of the gun at the victim. The charge of murder in the first degree would, therefore, comprehend the crime of involuntary manslaughter based on the unlawful pointing of a gun and a death resulting therefrom. This court had held that a finding of involuntary manslaughter cannot be disturbed on appeal because the evidence also furnished the basis for a finding that the defendant was guilty of murder. Gipe v. State, 1905, 165 Ind. 433, 75 N.E. 881, Hasenfuss v. State, 1901, 156 Ind. 246, 251, 59 N.E. 463.

'In the latter case this court said: 'Certainly, our decisions may be said to settle the question beyond controversy, and correctly so, that, under the law of this state in all cases of criminal homicide, regardless of the means by which it is committed, the crime is granduated, and must be one or the other of the three grades of homicide, namely, murder in the first or second degree, or manslaughter, and that it is in the province of the jury to determine under the evidence of which they will convict the accused.''

It thus appears by a long line of judicial precedent in this state that under a charge of murder a defendant may be found guilty of manslaughter although the statute defining the offense does not specifically fix manslaughter as a degree of any offense of murder. Regardless of the questioned soundness of the original reasoning of the above cases in view of the statutes since 1905, the law is now so well settled that we should not upset such well established precedent. The change, if desirable, must come from the legislature.

We point out however the Burns' § 9-1817 applies only to the offense which is 'charged in the indictment or affidavit.' It follows that unless manslaughter is specidically and separately charged in a count in an indictment, a defendant charged with murder may be convicted only of one of the degrees of murder, manslaughter or an attempt to commit the crimes and may not be found guilty of any other offense under Burns' §§ 9-1816 and 9-1817. The trial court committed no error in this case when it instructed the jury that under a charge of first degree murder the jury could properly consider the charge of murder in the second degree and manslaughter.

The appellant tendered not instructions upon lesser included offenses, yet insists that the court erred by failing to instruct the jury under Burns' § 9-1805 which states in part:

'In charging the jury the court must state to them all matters of law which are necessary for their information in giving their verdict.'

The above portion of the statute does not relieve a party from submitting desired instructions, if the court, through oversight or otherwise, fails to instruct as fully as a party desired. Counsel, knowing the court is omitting the instruction upon some point in the case, may not remain quiet and tender no instruction and afterwards claim the court erred. Such practice would be wrong and mischievous. The case of Sullivan v. State, 1957, supra, is to be construed in the light of such a principle. In that case, although the appellant objected to the court's failure to submit forms of verdict, including lesser offenses, she also tendered an instruction upon the same principle, which was also refused. The...

To continue reading

Request your trial
60 cases
  • Robinson v. State, 2-1072A80
    • United States
    • Indiana Appellate Court
    • April 15, 1974
    ...the 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 pre......
  • Brown v. State, 29661
    • United States
    • Indiana Supreme Court
    • December 17, 1958
    ...For premeditation 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......
  • Wrinkles v. State
    • United States
    • Indiana Supreme Court
    • December 31, 1997
    ...and tender no instruction and afterwards claim the court erred. Such practice would be wrong and mischievous." Barker v. State, 238 Ind. 271, 277, 150 N.E.2d 680, 683 (1958).28 During the penalty phase, the trial court instructed the jury on penalties as follows: "You are to consider both a......
  • O'Conner v. State
    • United States
    • Indiana Appellate Court
    • November 29, 1978
    ...and involuntary manslaughter. McDonald at 574; Gatchett v. State (1973) 261 Ind. 109, 300 N.E.2d 665, 667; Barker v. State, (1958) 238 Ind. 271, 150 N.E.2d 680, 682; Fleetwood at 815; Landers at 780; Hopkins at In 1974, this issue was addressed in dictum by the second district in Robinson, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT