Dull v. State, No. 30124
| Docket Nº | No. 30124 |
| Citation | 180 N.E.2d 523, 242 Ind. 633 |
| Case Date | March 01, 1962 |
| Court | Supreme Court of Indiana |
Page 523
v.
STATE of Indiana, Appellee.
Rehearing Denied April 2, 1962.
[242 Ind. 634] Clarence E. Benadum, Ralph V. Cecil, Frederick F. McClellan, Benadum, Cecil, McClellan & Conrad, Muncie, for appellant.
Edwin K. Steers, Atty. Gen., Gene Williams, Pros. Atty. 46th Judicial Circuit, Muncie, Richard Clapp and James J. Jordan, Deputies Pros. Atty. 46th Judicial Circuit, Muncie, for appellee.
ARTERBURN, Judge.
The appellant was found guilty of murder in the first degree after trial and upon an indictment reading as follows:
'The Grand Jury of the County of Delaware for the January Term, 1961, 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 Walter G. Line and Jay L. Dull, on or about the 22nd day of December, 1960, at and in the County of Delaware and in the State of Indiana, did then and there unlawfully and feloniously kill and murder one James J. Tricker, who was then and there a human being, in the perpetration of robbery by then and there unlawfully, feloniously, forcibly, by violence and putting said James J. Tricker in fear, take from the person and possession of the said James J. Tricker two wrist watches of the value of Thirty Dollars ($30.00) and an amount of lawful currency of the United States of America to the extent and value of which is to the Grand Jury unknown, which was then and there the property of said James J. Tricker; and that said Walter G. Line and Jay L. Dull, in the commission of said robbery did then and there unlawfully and feloniously strike
Page 524
and beat the said James J. Tricker on the head with a certain deadly weapon used as a bludgeon, to-wit: a sawed-off shot gun which the said Jay L. Dull had and held in his hands and as a result of said blow and said beating aforesaid that said James J. Tricker on said day and date died, contrary to the form of statute made and provided [242 Ind. 635] in such cases and against the peace and dignity of the State of Indiana.'S/ Gene Williams
Gene Williams Prosecuting
Attorney 46th Judicial Circuit
Of the State of Indiana.
'A true
Bill
S/ C. Cree Cable
Foreman of the Grand jury.'
The first contention made on this appeal is that the court erred in refusing to give the appellant's tendered instructions numbered 3 and 4. Instruction number 3 informed the jury that where the offense charged consists of different degrees, the jury may find the defendant not guilty of the degree charged and guilty of any degree inferior thereto. (Burns' § 9-1816.) Tendered instruction number 4 defined murder in the second degree and also manslaughter, and tendered forms of verdict for each of such offenses.
The question then presented is: whether second degree murder and manslaughter are offenses included in a charge of homicide committed in the perpetration of rape, arson, robbery or burglary. On request, should the jury be so instructed? The statute (Burns' §§ 9-1816 and 9-1817) provides in substance that where an offense under the statute consists of different degrees, a defendant may be found guilty of any lesser degree than that charged, and in all other cases where the offense is not graduated in degrees by the statute, a defendant may be found guilty of any offense necessarily included therein. The law in this respect is examined more fully in Barker v. State (1958), 238 Ind. 271, 150 N.E.2d 680. Upon reading the statute (Burns' § 10-3404) it will be found that [242 Ind. 636] murder in the second degree consists of homicide with malice, but without premeditation. The statute defining murder in the first degree reads as follows:
'Murder--First degree--Penalty.--Whoever purposely and with premeditated malice, or in the perpetration of or attempt to perpetrate a rape, arson, robbery, or burglary, kills any human being, is guilty of murder in the first degree, and on conviction shall suffer death or be imprisoned in the state prison during life. [Acts 1941, ch. 148, § 1, p. 447.]'
By reference to the indictment in this case it will be noted that the defendant was not charged with premeditated murder. There are no allegations of premeditation in the indictment. The charge, therefore, is based upon the latter portion of the statute, which does not require the element or proof of premeditation, if the homicide is committed in the perpetration of robbery or the other felonies named in the statute.
In Mack v. State (1932), 203 Ind. 355, 370, 180 N.E. 279, 283, 284, 83 A.L.R. 1349, we said:
'When the facts prove the allegations of an indictment which charges the crime defined by the second sentence of section 2412, supra, they prove first degree murder, and where, as here, there is no evidence adduced which proves anything but murder in the perpetration of a robbery, the court is not required to instruct the jury on second degree murder or manslaughter.'
This statement was reiterated and approved in Swain v. State (1938), 214 Ind. 412, 415, 15 N.E.2d 381, 383.
In Hawkins v. State (1941), 219 Ind. 116, 125, 37 N.E.2d 79, 83, this court said:
'Appellant tendered 28 instructions all of which were given except two. By these he sought [242 Ind. 637] to have the jury
Page 525
instructed that under the indictment for murder while perpetrating a robbery, he could be convicted of murder in the second...To continue reading
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Rust v. Watson, No. 20149
...exceptions. * * *' However, the cases interpreting Rule 1--15, supra, do not support the appellants' reasoning. In Dull v. State (1962), 242 Ind. 633, at p. 638, 180 N.E.2d 523, at p. 525, our Supreme Court 'The alleged misconduct is presented by affidavits signed and sworn to by the appell......
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Hester v. State, No. 473S70
...although designated as first degree murder, does not carry with it charges of second degree murder or manslaughter (Dull v. State (1962), 242 Ind. 633, 180 N.E.2d 523; Barker v. State (1958), 238 Ind. 271, 150 N.E.2d 680), we are not prepared to say that there can be no conviction of the co......
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Bennett v. State, No. 2--473A101
...Moore v. State (1972), Ind.Ct.App., 290 N.E.2d 472; Rexroat v. State (1964), 245 Ind. 688, 201 N.E.2d 558. See also, Dull v. State (1962), 242 Ind. 633, 180 N.E.2d 523; Harrison v. State (1972), [159 Ind.App. 63] Ind., 281 N.E.2d 98; Cooper v. State (1972), Ind., 284 N.E.2d 799; Johnson v. ......
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Burgett v. State, No. 2--1173A240
...Patterson v. State (1969), 251 Ind. 580, 244 N.E.2d 221, cert. denied, 396 U.S. 829, 90 S.Ct. 81, 24 L.Ed.2d 80; Dull v. State (1962), 242 Ind. 633, 180 N.E.2d 523, cert. denied, 371 U.S. 902, 83 S.Ct. 206, 9 L.Ed.2d 164; Blue v. State (1946), 224 Ind. 394, 67 N.E.2d 377, cert. denied, 330 ......
-
Rust v. Watson, No. 20149
...exceptions. * * *' However, the cases interpreting Rule 1--15, supra, do not support the appellants' reasoning. In Dull v. State (1962), 242 Ind. 633, at p. 638, 180 N.E.2d 523, at p. 525, our Supreme Court 'The alleged misconduct is presented by affidavits signed and sworn to by the appell......
-
Hester v. State, No. 473S70
...although designated as first degree murder, does not carry with it charges of second degree murder or manslaughter (Dull v. State (1962), 242 Ind. 633, 180 N.E.2d 523; Barker v. State (1958), 238 Ind. 271, 150 N.E.2d 680), we are not prepared to say that there can be no conviction of the co......
-
Bennett v. State, No. 2--473A101
...Moore v. State (1972), Ind.Ct.App., 290 N.E.2d 472; Rexroat v. State (1964), 245 Ind. 688, 201 N.E.2d 558. See also, Dull v. State (1962), 242 Ind. 633, 180 N.E.2d 523; Harrison v. State (1972), [159 Ind.App. 63] Ind., 281 N.E.2d 98; Cooper v. State (1972), Ind., 284 N.E.2d 799; Johnson v. ......
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Burgett v. State, No. 2--1173A240
...Patterson v. State (1969), 251 Ind. 580, 244 N.E.2d 221, cert. denied, 396 U.S. 829, 90 S.Ct. 81, 24 L.Ed.2d 80; Dull v. State (1962), 242 Ind. 633, 180 N.E.2d 523, cert. denied, 371 U.S. 902, 83 S.Ct. 206, 9 L.Ed.2d 164; Blue v. State (1946), 224 Ind. 394, 67 N.E.2d 377, cert. denied, 330 ......