Loftus v. State

• Decision Date: 17 January 1944
• Docket Number: 27894.
• Citation: 52 N.E.2d 488,222 Ind. 139
• Parties: LOFTUS v. STATE.
• Court: Indiana Supreme Court

52 N.E.2d 488

222 Ind. 139

LOFTUS v. STATE.

No. 27894.

Supreme Court of Indiana

January 17, 1944

Appeal from St. Joseph Circuit Court; Dan Pyle Judge.

Louis E. Kunkel, of Michigan City, for appellant.

James A. Emmert, Atty. Gen., Frank Hamilton, 1st Asst. Atty. Gen and Frank E. Coughlin, Deputy Atty. Gen., for appellee.

FANSLER Chief Justice.

The defendant was tried by a jury upon an indictment which is denominated 'Indictment For Murder.' There was a verdict of guilty and he was sentenced to death. The indictment charges that the defendant did 'unlawfully and feloniously kill and murder one William Tennell, in the perpetration of the crime of bank robbery.' There is no allegation of 'premeditated malice,' or that the killing was done 'purposely and maliciously, but without premeditation,' or that the killing was voluntary, upon a sudden heat.'

The murder statute in effect at the time was as follows: 'Whoever, purposely and with premeditated malice, 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: Provided Whoever, 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.' Acts 1929, ch. 54, § 4, p. 136. (This statute was afterward amended in 1939 by adding the words 'or be imprisoned in the state prison during life.' Acts 1939, ch. 133, § 1, p. 658. See § 10-3401, Burns' 1942 Replacement, § 2402-1, Supp. 1941 to Baldwin's 1934.) At the same session of the Legislature a statute was enacted defining robbery as follows: 'Whoever forcibly and feloniously takes from the person of another any article of value, by violence or by putting in fear, is guilty of robbery * * *.' Acts 1929, ch. 54, § 1, p. 136. To this extent the statute was a reenactment of a former statute which was superseded. In 1927 a bank robbery statute was enacted in the following language: 'Whoever, with intent to commit the crime of larceny, or any felony, shall confine maim, injure or wound, or attempt or thereaten to confine, kill, maim, injure or wound, or shall put in fear any person for the purpose of stealing from any building, bank, safe or other depository of money, bonds or other valuables, or shall by intimidation, fear, or threats compel or attempt to compel any person to disclose or surrender the means of opening any building, bank, safe, vault or other depository of money, bonds or other valuables, or shall attempt to break, burn, blow up or otherwise injure or destroy any safe, vault or other depository of money, bonds or other valuables in any building or place, whether he succeeds or fails in the perpetration of such larceny or felony, shall be deemed guilty of the crime of bank robbery * * *.' Acts 1927, ch. 158, § 1, p. 470, § 10-4102, Birns' 1942 Replacement, § 2417, Baldwin's 1934. This statute was in effect when the first-degree murder statute of 1929 was enacted.

In order to charge murder as defined by the statute, the indictment must charge that the killing was done 'purposely and with premeditated malice,' or, in the alternative, that the killing was done 'in the perpetration of or attempt to perpetrate a rape, arson robbery or burglary.' It is clear that the indictment under consideration did not and was not designed to charge that the killing was done purposely and with premeditated malice. It does not charge that the killing was done in the perpetration of or attempt to perpetrate a 'robbery.' It does charge the killing to have been in the perpetration of a 'bank robbery.' The drawer of the indictment seems to have considered the word 'robbery' to be broad enough to cover 'bank robbery.' But, in determining whether the statute may be so construed, we must go deeper than the names involved and look to the substance of the offenses to which the names have been applied. If the word 'larceny' had been used it would undoubtedly be construed as including both 'grand larceny' and 'petit larceny,' since they are but different degrees of the same offense. The effect of the robbery statute would be the same if the words 'is guilty of robbery' had been omitted, and it had merely provided that 'whoever takes from the person of another any property, by violence or by putting in fear, shall upon conviction be imprisoned,' thus leaving the crime without a name, and the same is true of the 'bank robbery' statute. In fixing a death penalty for a killing which was not purposely done and was without premeditated malice, the Legislature must have looked to the substance of the...