Swain v. State, No. 27026.

Docket NºNo. 27026.
Citation15 N.E.2d 381, 214 Ind. 412
Case DateJune 07, 1938
CourtSupreme Court of Indiana

214 Ind. 412
15 N.E.2d 381

SWAIN
v.
STATE.

No. 27026.

Supreme Court of Indiana.

June 7, 1938.


James Reed Swain was convicted of murder in the first degree in the perpetration of a robbery, and he appeals.

Affirmed.

[15 N.E.2d 382]

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,

[15 N.E.2d 383]

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...

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6 practice notes
  • Hawkins v. State, No. 27534.
    • United States
    • Indiana Supreme Court of Indiana
    • November 5, 1941
    ...of murder in the second degree, manslaughter, or involuntary manslaughter. This Court has held otherwise in Swain v. State, 1938, 214 Ind. 412, 15 N.E.2d 381;Mack v. State, 1932, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. 1349 and Cole v. State, 1922, 192 Ind. 29, 134 N.E. 867. The reason is fou......
  • Fleener v. State, No. 1079S289
    • United States
    • November 26, 1980
    ...83 S.Ct. 206, 9 L.Ed.2d 164; Hawkins v. State, (1941) 219 Ind. 116, 125-26, 37 N.E.2d 79, 83 (cases cited therein); Swain v. State, (1938) 214 Ind. 412, 414-15, 15 N.E.2d 381, 383, cert. denied, (1939) 306 U.S. 660, 59 S.Ct. 791, 83 L.Ed. 1057. We recognize that under appropriate circumstan......
  • Swain v. State, No. 27134.
    • United States
    • Indiana Supreme Court of Indiana
    • February 9, 1939
    ...of a robbery, and sentenced to death. He prosecuted an appeal to this court, which affirmed the case on June 7, 1938. Swain v. State, 15 N.E.2d 381. Thereafter, he filed in the court below a petition for a writ of error coram nobis. The state answered by general denial; evidence was heard; ......
  • Rodriguez v. State, No. 278S39
    • United States
    • Indiana Supreme Court of Indiana
    • April 25, 1979
    ...is not a lesser included offense of felony murder. Hester v. State, (1974) 262 Ind. 284, 315 N.E.2d 351; Swain v. State, (1938) 214 Ind. 412, 15 N.E.2d 381; Mack v. State, (1932) 203 Ind. 355, 180 N.E. 279. Cf. Blythe v. State, (1978) Ind., 373 N.E.2d 1098, 1100. In Witt v. State, (1933) 20......
  • Request a trial to view additional results
6 cases
  • Hawkins v. State, No. 27534.
    • United States
    • Indiana Supreme Court of Indiana
    • November 5, 1941
    ...of murder in the second degree, manslaughter, or involuntary manslaughter. This Court has held otherwise in Swain v. State, 1938, 214 Ind. 412, 15 N.E.2d 381;Mack v. State, 1932, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. 1349 and Cole v. State, 1922, 192 Ind. 29, 134 N.E. 867. The reason is fou......
  • Fleener v. State, No. 1079S289
    • United States
    • November 26, 1980
    ...83 S.Ct. 206, 9 L.Ed.2d 164; Hawkins v. State, (1941) 219 Ind. 116, 125-26, 37 N.E.2d 79, 83 (cases cited therein); Swain v. State, (1938) 214 Ind. 412, 414-15, 15 N.E.2d 381, 383, cert. denied, (1939) 306 U.S. 660, 59 S.Ct. 791, 83 L.Ed. 1057. We recognize that under appropriate circumstan......
  • Swain v. State, No. 27134.
    • United States
    • Indiana Supreme Court of Indiana
    • February 9, 1939
    ...of a robbery, and sentenced to death. He prosecuted an appeal to this court, which affirmed the case on June 7, 1938. Swain v. State, 15 N.E.2d 381. Thereafter, he filed in the court below a petition for a writ of error coram nobis. The state answered by general denial; evidence was heard; ......
  • Rodriguez v. State, No. 278S39
    • United States
    • Indiana Supreme Court of Indiana
    • April 25, 1979
    ...is not a lesser included offense of felony murder. Hester v. State, (1974) 262 Ind. 284, 315 N.E.2d 351; Swain v. State, (1938) 214 Ind. 412, 15 N.E.2d 381; Mack v. State, (1932) 203 Ind. 355, 180 N.E. 279. Cf. Blythe v. State, (1978) Ind., 373 N.E.2d 1098, 1100. In Witt v. State, (1933) 20......
  • Request a trial to view additional results

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