Swain v. State

• Decision Date: 07 June 1938
• Docket Number: 27026.
• Citation: 15 N.E.2d 381,214 Ind. 412
• Parties: SWAIN v. STATE.
• Court: Indiana Supreme Court

15 N.E.2d 381

214 Ind. 412

SWAIN v. STATE.

No. 27026.

Supreme Court of Indiana

June 7, 1938

Appeal from Vanderburgh Circuit Court; John W. Spencer, Jr. judge.

Elmer Q. Lockyear, Theodore Lockyear, and Charles J. Eichel, all of Evansville, for appellant.

Omer Stokes Jackson, Atty. Gen., and Rexell A. Boyd, Deputy Atty Gen., for the State.

HUGHES Chief Justice.

The appellant was convicted of murder in the first degree in the perpetration of a robbery as charged in the indictment.

It appears from the evidence in the record that one Christ Bredenkamp owned a grocery store in the City of Evansville Indiana; that the appellant, age 20 years, and one James Alexander, age 16 years, on the night of November 23, 1937, met and made arrangement to rob Mr. Bredenkamp; Alexander had a rifle and Swain borrowed a single barrel, twelve gauge shot gun; they went to the store, looked in and saw Mr. Bredenkamp; they then retired to a railroad track near the store and the appellant put the gun together and loaded it; they then walked back to the store and walked in; Bredenkamp was in the back of the room when they entered and Bredenkamp called to him and said, 'what will you have?' Alexander said, 'Stick 'em up;' Bredenkamp grabbed a butcher knife, then the appellant shot him with the shot gun which produced a large wound in his abdomen and from which he died within a short time. It also appears from the evidence that on November 23, 1937, the appellant and Alexander were talking about Christmas money and they decided to rob Bredenkamp to secure some money and the appellant thought they ought to get as much as one hundred and sixty dollars.

The error relied upon for reversal is the overruling of the appellant's motion for a new trial and due to the fact that there are many reasons assigned in the motion we will not set them out in full, but will consider them as set forth in appellant's brief.

It is first contended by the appellant that the court erred in giving of its own motion instruction number two. This instruction is in the language of the statute, and is as follows: 'Whoever in the perpetration 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.' It is the theory of the appellant that the instruction failed to fully define the crime of murder in the first degree, second degree, and voluntary and involuntary manslaughter and did not inform the jury of the doctrine of included offenses. This theory can not be upheld. The statute (§ 10-3401, Burns' 1933, Sec. 2402, Baldwin's Ind.St.1934), clearly and unambiguously states that one who kills any human being in the perpetration of robbery is guilty of murder in the first degree and on conviction shall suffer death. It was charged in the indictment that the appellant while engaged in the perpetration of a robbery or the attempt killed one Christ Bredenkamp. The appellant was tried and convicted upon this charge and under the statute the conviction carried with it the sentence of death as for first degree murder and he could not have been convicted for any included offense and therefore there was no necessity of the jury being instructed as to included offenses. Moreover, the evidence shows a killing in the perpetration of a robbery, and the statute is definite under such circumstances as to the penalty to be imposed in case of conviction.

Great stress is placed by the appellant upon the fact that Sections 5 and 6 of Chapter 54, Acts 1929, were repealed by Chapter 85, Acts 1935. Although these sections were repealed the fact remains that the section defining the crime and the penalty to be imposed were not repealed and it remains now as it was when enacted. The repeal of the particular sections did not in our judgment affect, modify, or change the section of the statute which provides for a death penalty where one is convicted for the killing of a human being while in the perpetration of, or attempt to perpetrate, a robbery. As said in the case of Mack v. State, 203 Ind. 355, 180 N.E. 279, 283, 83 A.L.R. 1349,

'The crime of first degree murder as defined by the second sentence (the proviso) of section 2412 is: '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.''

'Premeditation or deliberation (which distinguishes first degree murder defined in the first sentence of section 2412, Burns' Ann.St.Supp.1929, from second degree murder defined in section 2415 Burns' Ann.St.1926) is not an element of this crime, Cole v. State, 192 Ind. 29, 134 N.E. 867, neither is malice or intent to kill necessary elements of the crime, Cole v. State, supra. When the facts prove the allegations of the 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 * * *.'

No error was committed in giving instruction number two.

The appellant objects to the giving of instruction number 11. This instruction gave the jury two forms of verdicts for their use. The first was: 'We, the jury, find the defendant not guilty,' and the second was: 'We, the jury, find the defendant guilty of murder in the first degree in the perpetration of a...