*1 being timely object questioned was ure to while the witness argue However, appellees on direct examination. that it was never made clear on direct examination whether the witness testifying property, highest was to the value merely discussing property, best use of was future changes. appellees On cross-examination it made considering high- clear that the witness was the effects way project requiring appellees’ condemnation land in determining appellees’ action in the value land. It was time, basis, part, when opinion at this of the witness’s clear, appellees made to value was moved to strike testimony the witness’s as to value. This motion to strike was granted by the trial court.
It is from clear the record that on direct examination there nothing to indicate that basing witness was
opinion, part, on the effects of highway project. only This was made clear on cross-examination of the Thus, witness. the motion to strike untimely was not objectionable since it was made when the nature of the testi mony as to value first Healey, became known. Healey Admr. v. (1952), App. 155, 123 Ind. 101; 109 N. E. 2d Ross v. The State App. 35.
Therefore, the trial court did not err in sustaining appel- lees’ Motion to Strike.
DeBruler, C.J. and Arterburn, Hunter
Givan,
JJ.,
concur.
Reported in
Note. —
Jones Indiana. 868 S Rehearing [No. 127. Filed December February 1969. denied 1970.] *3 Snyder, Stanley R. Hood, Bruce G. of Wayne, Fort for appellant. Attorney Sendak, General, Murray
Theodore L. West, Dep- uty Attorney General, Peden, Deputy Attorney Mark General, appellee. Appellant .charged was
Arterburn, indictment with J. attempting murder the crime of while perpetrate robbery. a 238 degree guilty first jury of and found a tried
He was felony. aof in the commission murder deceased, Everett 1967, May 12, that on are The facts and Beck’s working at Pete a bartender Bechtel, was shows Independent evidence Wayne, Indiana. Tavern in Fort eyewitness closing a.m., an time, 12:30 approximately at that pop- a a like noise cafe heard across the street was who standing on the up he men saw two gun he looked and when running man came out Another steps the tavern. dead, decedent was found The three then fled. The
tavern. shotgun apparent was door, wounds. It lying near business, closing engaged up the as the he had been appellant money open. containing The cash drawer men prior thereto he and two other admitted confession closing- time; robbery at the tavern planned had buy a them and one of asked they to the door had come bag potato chips chips. A was found near bag potato killing. appellant he The stated following door on the floor belonging shotgun his father-in-law. The shot- had used garage, in a where gun found hidden the father-in-law was had appellant stated it could be found. appeal on appellant, main contentions are that two given confession, adequate warning was not prior under 436, 384 Miranda Arizona U. S. S. Ct. 694, and there was not 2d sufficient evidence inde-
L. Ed. prove corpus pendent of the confession to delicti of the charged. crime May questioned appellant
On the Fort Sergeant Wayne Detective James Andrews Police Station. informed that: *4 he testified that right silent; had that he to remain "He was advised anything say against could and he did would used him in right, right Court; he he had the advised had the an to call right attorney attorney; have present to an he had at wishes; he if he not have if did the funds to hire that time appoint attorney the Court would one for an him. He was questions if advised he did decide to answer and talk right stop any to us he had the at time he wished.” In warning, addition to the above the state introduced as court, evidence 31 in the exhibit trial which was entitled Rights” Wayne Department” “Your “Fort Police and which following contained the information: Rights
“Your Wayne Department “Fort Police Station
Place 5-17-17 Date 2 P.M. Time you any questions, Before you we ask your must understand rights. right You you have the Anything to remain silent. say against you can be right used in court. You have the lawyer talk to a you any for questions, advice before we ask you during and to have him questioning. You have this right presence lawyer to the you advice and of a even if can- not afford to hire way giving you lawyer one. We have no appointed but one you, will be you go and when to court you and the court finds pauper. you are a If wish to questions answer lawyer now present, you without have the right stop answering any right time. You also have the stop answering questions you until lawyer. talk ato
Waiver I have my rights read the statement of shown above. I under- my rights willing stand what I am questions are. to answer amake statement. I lawyer. do not want a I understand doing. pressure know what I am any No kind has been against used me.
Signed Morris Jones /s/ Sgt. Raymond Chambers Witness /s/ Sgt. James Andrews H
Witness /s/ 2 P.M.” (Our emphasis.) Time *5 Sergeant further revealed Testimony by Andrews Detective given to the quoted was form copy that of the above when copy holding it, identical another appellant while he was and him, for read to word word. was say, any- if
“Q. what did he him after this was read to And thing? “A. He understood it.” said he upon the appellant, then read to
The statement was waiver ad- was then signed completion it. The document which he objection. mitted into evidence without to his home then returned appellant questioned The and was day. the next being police station to to asked return after and police station May 18, 1967, appellant returned to On verbally to again as rights paper informed and shown the right to remain rights. that had the He was advised he be used silent; anything and would said could that he that attorney; he had Court; right that an to call that he had the he right attorney present that time before to have an if could questions. that he any also advised He was answered appoint one attorney the Court would not an that afford go questions and ahead if to answer him that he decided and any stop at time he wished. and talk that he could replied again if he appellant The asked understood he Appellant informed was under arrest that he was then did. Thereafter, appellant charge preliminary for the homicide. he, Johnny Larry police officers how Rouse recited to pur- attempted Pete and Henderson had to rob Beck’s tavern night they The plan suant had formulated before. to bag potato chips plan appellant ask for a called for to pretense gain entry. impli- confession was sufficient to robbery attempted appellant in the of the cate tavern. finished his narrative of events After sur- robbery rounding attempted tavern the subse- Becktel, he quent of Everett was asked he death would be give willing police concerning a written statement given verbally just had them. He he said he would. The facts following questions written statement contained the and an- preliminary swers to the statement itself.
“Q. you your is, rights, Do understand constitutional you attorney; you are entitled consult an statement; anything compelled are make a not you may against say you either in court? used for or “A. Yes.”
Appellant have been contends that the confession should not appel- admissible evidence in the trial The reasons court. gives lant this for contention are: given Wayne appellant by
1. The Police advice Fort the Department inadequate laid out in was under the standards Miranda Arizona 384 U. 86 S. v. S. Ct. requires
16 L. Miranda that accused Ed. 2d in that the person attorney, informed if he cannot afford an one be that prior any questioning. Appel- appointed will be for him to by given police lant was contends the advice the to the effect appointed attorney appellant an the would be if when he went he to court and the court determined was pauper.
2. given by police The advice appellant the to with refer- rights ence to his constitutional coupled was not with the requisite explanations necessary person for low reading ability, intelligence, experience and lack of with the police. advice, The effect necessary of this absent the ex- planation, warning cannot Miranda, result in a since, under appellant contends, there could be relinquish- no intentional rights ment of his constitutional explanation. without this wording 3. It is further submitted that the at the end of signed by appellant the statement to the effect that if he indigent, attorney were an an would be him, furnished to ambiguous, explained in that it was not at that time “indigent” meant, what stage the word or at what an attor- ney appointed, further, would pronouncement be contradictory in printed the face of the statements on officers, by to appellant police rights
the waiver and read lawyer, hire afford to if could not the effect he went him if and when appointed for one would pauper. abe court and was found to the law agree appellant’s statement We the that he has informed requires accused to be Miranda the interrogation. during right attorney present have an Cir.), (1967 5th Fendley States C. A. United 2d 384 F. 923. warning given appellant did not inform
However, here by attorney appointed only right to have an him of his quoted testimony of Detec above in the court. Twice had Sergeant “he appellant was told that Andrews tive he attorney present if right at that time to have an warnings given appellant sufficient were wished.” The verbal attorney right pres an to have him he had inform funds,” court would ent and that he was “without sufficiently attorney appoint This satisfies an him. expressed Miranda. criteria appellant’s contention that statements *7 blind only appointed
police led him to believe that counsel would
court,
of
was similar to the contention in the case
for him
Coyote
Cir.),
(1967
United States
C. A. 10th
rote didactic to niceties. What re Miranda does quire meaningful is advice to the unlettered and un language comprehend learned in which he can which he can and on knowingly indulge act. We will not semantical debates particular between counsel over rights. words used to inform an individual of his cru The cial used, test is whether the words the context consider ing background age, intelligence of the individual being interrogated impart warning clear, understandable rights. all of his is, course, always “It open subjectively to an accused to deny he precautionary understood the warning and ad- respect vice assistance of counsel. When the admissibility issue is raised hearing, in an i.e., McHenry see States, Cir., v. United 308 F. 2d it the court objectively determine whether in the circumstances the case the words used convey were sufficient to the re- warning.” quired Coyote States, v. United supra, at 308. appellant The was asked in the trial court to read the docu- Rights” ment “Your entitled and to read the written waiver signed. Appellant which reading he had trouble them and was many unable to read words contained appellant therein. The conveyed thus contends words for the informing purpose of rights him of his constitutional were inadequate satisfy the test “whether the words in the used, considering age, context background, and intelli- gence being of the individual interrogated, impart a clear warning rights.” of all of understandable Testimony in the trial court revealed document containing pertaining both the section to the accused’s consti- rights and the appellant. tutional waiver were read to during transcript that at least interrogation shows twice appellant he if he was asked understood his constitutional rights. was, both occasions his answer On “I understand.” *8 determining process whether the due “In clause of the violated, the admissibility Amendment
14th of the confes 244 Federal standard both the same is tested sion all the whether under prosecutions, that is and State circumstances, free and the confession was attendant product a or self-determined, the of rational
voluntary, fully compulsion induce will, a and without and free intellect was over any sort, the accused’s will whether or ment of citations)” (Omitting John he confessed. at the time come son v. 2d 694. (1968), 235 E. State criteria and his appellant satisfies this of The confession nature he understod the police questions shows answers to the rights. of his constitutional consequences waiver of his prima admissibility facie overcome the Appellant failed to has showing satisfy its incom- the burden of of the confession petence. is inadmis- the confession contends appellant further corpus show the delicti the state to failure of due to the
sible under included in the indictment elements involved of the question corpus charged. Appellant does not the ishe which alleges However, the murder. of the delicti are admissible evi- extrajudicial into statements before attempted both the murder corpus of dence, delicti established, case involves the since this robbery must be felony-murder rule. involving proof corpus our from Court a late case
In cautionary a it was noted that rule. We we stated: delicti proof corpus requiring of the a . delicti of “. . The rule origin hesitancy and basis in the its law to crime has corroboration, adequate accept defendant a without confession of (extrajudicial) open it be unless one made guilty.” plea of Brown v. court —as N. E. 2d 720. Ind. corpus part Although proof delicti use as origin cautionary had its measure in our criminal case forgotten jurisprudence, courts times have criminal object principle. In some instances the purpose or point meaning expanded ato where the entire has been crime proof corpus out proved delicti, to make al- must *9 though instances, Court, in some in as our we have said that proof beyond need not be a reasonable Whether or doubt. any purpose giving corpus not real is in served delicti a broad expansive meaning subject and has been a of considerable con- jurisdictions. fusion to the courts various Black’s Law Dictionary, gives meaning corpus 4th Ed. a which, to delicti in opinion, our is a correct one: “Corpus body body (material delicti. The of a crime. The substance) upon committed, e.g., which a crime has been corpse man, aof murdered the charred remains sense, a house burned down. In a derivative crime; substance a or foundation of the substantial
fact a crime has been committed.” recognizes Wigmore judicial opinions the confused in this Wigmore Evidence, Edition, VII, field. on Third Vol. § p. 401, corpus defines delicti as follows: meaning phrase ‘corpus “The of the delicti’ has been the subject judicial of much comment, loose apparent and an given sanction has often been unjustifiably an to broad
meaning. reference It analysis is clear that an every crime, with it, to this element of reveals component three parts, first, specific the occurrence of the injury kind of or (as, homicide, person loss in deceased; arson, a house burnt; larceny, property missing) ; secondly, somebody’s criminality (in the e.g. contrast, accident) as the source of loss, together two involving —these the commission of by somebody; a crime thirdly, identity accused’s as the doer of this crime.” Wigmore proceeds point then only out the first required prove element corpus be delicti, namely, the death or house, mere burnt it would be sufficient as cautionary rule, apparently prefers he such a meaning corpus limited delicti. points He further out, however, majority that the of the require only courts not proof element, of the first but the added element that crim inality involved, namely, that the homicide was felonious burning or the house was caused some criminal act such require as arson. states He the third element, namely, specifically involved that he was identity accused or of the as corpus delicti, would be absurd part proof of
as of the crime, synonymous proving the whole with a result would confession, any in a sense eliminate and would independent of confessions. the value of Wigmore the rule majority forth is rule set opinion in Brown
in our was followed E. 720. There we said: 184, 154 2d proof corpus body delicti not “A dead alone body case; marks an identified dead but homicide surrounding circumstances that violence thereon would causes *10 deceased did not die from natural prima indicate the that a homicide has (Omitting facie establishes citations.) corpus delicti. and the been committed “Likewise, lished corpus in an arson case is not estab delicti burning building alone, by a but additional of necessary show it intention independent is evidence ally in violation of law.” afire set point (1969), 252 Ellis v. a case in see: For recent 472, 250 E. Ind. 2d 364. charged in the case with murder
In this robbery. attempt degree, commit a specifically in first 10-3401, statute, as fol- Ind. reads Burns’ Stat. Anno. § lows : degree Penalty. purposely and “Murder —First Whoever — malice, perpetration premeditated or in or at- of
with tempt arson, robbery, burglary, rape, kills perpetrate a or degree, guilty any and on conviction state being, murder in the first is human imprisoned in the shall suffer death or be during prison life.” degree that murder in the first can be com It be noted will malice, premeditated involves mitted a homicide which opinion arson, robbery burglary, and it is rape, our corpus is established evidence this case the delicti independent confession of homicide from which feloniously may that it was done without be drawn inferences specifically premedi independent confession of the evidence any the other enumerated felonies. We are tation, rape or position by borne out in this what is we believe substantial growing authority. Supreme The United States Court and position Federal courts have taken a even less strict than the corroborating They permit merely one we announce here. in- dependent evidence of the confession without reference to sufficient, corpus delicti to be it tends establish the trust- worthiness of the confession. (1965, A.),
In Landsdown States v. United 5th C. C. Supreme position F. 2d 405 the of the United States Court in Opper S. 348 U. 99 L. U. S. 75 S. Ct. Ed. present system is reviewed and the rule of the Federal set forth: upon “We are first called govern- to decide whether the proof ment sustained its corpus burden of of the delicti be- fore the admission into evidence of Landsdown’s extra
judicial confessions and admissions. Landsdown contends independent there was evidence, no apart from his statements, outside the state pistol that the found his automobile was ever Consequently, argument of Louisiana. proceeds, the statements should not have been admitted be- cause an essential element offense, interstate trans- portation statements. firearm, proven was not without the aid of the Although position support has found some purpose we think it ing requir- overlooks the basic of the rule extrajudicial corroboration of an confession before its justification admission into evidence. The such rule expressed States, was well Opper 4, supra, *11 v. United note where it was said: country ‘In persists our the doubt the zeal of the agencies prosecution protect peace, the self- accomplice, interest of the enemy the maliciousness of an
or the aberration or weakness of the accused under the suspicion may tinge strain of warp the facts of the 84, 89-90, confession.’ 348 158, U. S. 75 S. Ct. 162. requires principle “It is thus a incriminatory sound questionable statements reliability pres- made outside the judge by ence aof substantial, to be corroborated inde- pendent evidence their before admission into evidence against suspicion surrounding the accused. But the natural justify such statements does not require, rule which would only not such corroboration as would lend credence to the accused, statements of the but also substantial evidence of 248 charged. Such ishe every with which offense element of the crediting requirement beyond go rule would en law to effective impediment impose an confession forcement. reasonable itself, stringent more prefer the less We therefore statement requirement of the of corroboration every crime proof of element rather than 348 U. v. 158, 84, 75 S. Opper (1954), S. Ct. charged.” U. S. v. (1968 Cir.), 2d Fayette 2d 388 F. 101; S. L. U. 99 728; Ed. v. U. S. 503; Cir.), (1969 F. 2d 9th 409 Mossbrook Kelly 743; U. S. Bray (1962 Cir.), 2d D. 306 F. U.S. C. v. v. (1965 864; U. S. Landsdown v. (1957 Cir.), 246 F. 10th 2d v. (1959), 405; Lucas Cir.), 2d also: State 5th 348 F. See State (1966), M. 50; 76 N. 37, Paris 152 2d 30 N. J. A. 512; (1960), 44 Hawaii 291, v. Yoshidu 414 P. 2d State 986; 352, 2d L. R. 2d 1316. 354 P. See A. go far as the time to as are not inclined at this
We however interpretation in of what Federal courts have lenient their corroborating establish evidence to constitutes sufficient majority rule, as we noted admissibility of a confession. The from Brown v. State (1958), 184, 154 previously 239 Ind. 720, more rational to us to be the better and E. 2d seems prima case principle that a facie It not mean to follow. does charged proved. to be all of the crime has with the elements of in supported said in this state are what has been We 2d In (1958), 154 N. E. 720. Brown v. State A. in the 2d as State v. Johnson 31 N. J. charged us, appellants murder were case before there, robbery. argued It attempted of a commission independent proof case, that there was no attempted robbery engaged the time defendants were Jersey killing. Supreme The New of the admitted felonious Court reasoned as follows: requiring “The reason for the rule independent evidence corroborating danger of the confession of crime it to avoid the convicting solely a defendant out of his own mouth of a that never occurred or a crime committed someone . .
else. . :|! * [*] [*] [*] prosecution premeditated “. . . In a murder, the required independently prove
is not those mental elements *12 given that admits them. a confession has if the defendant felony proof in a independent By token, same necessary proof felony-murder prosecution felony not is gathered In from corroborated confession. can be by placed upon burden it satisfied the our view the State death, by producing independently proving corroborative evidence fact and tending that when the to establish they holdup participated in the defendants confessed telling killing they the truth. We therefore find were properly received in evidence and that the confessions were were amply corroborated.” From an extensive quan review of the authorities as necessary prove tum of corpus evidence delicti in this state, necessary it we hold that is not to make out a prima facie case as to each element of the crime charged necessary prove nor is it each element of the charged beyond a crime reasonable doubt before a confession is further admissible. We hold that the traditional definition corpus delicti, quoted as heretofore from Black’s Diction ary, namely, body (material substance) that the upon which committed, i.e., corpse a crime been has aof murdered house, man or the charred remains of a burnt example, plus independent from may evidence which an inference be therewith, a crime was committed in drawn that connection is corpus sufficient to show delicti. Our rule is stricter than by held the Federal courts and courts, some state above, require since in this state we shown evidence of crim inality in with However, connection the incident. in first de gree felony-murder murder under our statute we do not require felony attempted felony the exact be estab independent lished evidence the confession nor do we premeditation proved by require independent be outside charge purposeful premeditated evidence where the first may degree These elements murder. shown use of the any independent in connection confession evidence in making out the case. been, have in decisions
There of this state at times in subject dicta and confusion on past, some matter, any contrary principle such statements or cases to the enun- *13 hereby principle defining above are ciated overruled. The majority corpus delicti, above, is the rule and is that rule designed which is best to allow the efficient administration of ample protection criminal law and at same the time afford of rights the defendant’s where confession is involved. independent find there We was sufficient evidence prove corpus under rule enunciated above the the delicti of charged independent the crime in this The case. evidence shows that the homicide in this state committed of one under violence the circumstances from which one could draw the conclusion that it was criminal in nature. judgment of the trial court affirmed. Givan, JJ., concur; DeBruler, C.J.,
Hunter dissents opinion; J., Jackson, opinion. with with dissents
Dissenting Opinion categorical C.J. I dissent in this case. The im- DeBruler, perative Miranda of v. Arizona 384 U. S. 86 S. 694, requiring Ct. 16 L. Ed. 2d a criminal defendant interrogated by police about to be the to be advised his right pauper present interrogation to have counsel at the employ one, the event he has no means to complied was not court, therefore, with in case. The trial this committed re- objection error versible when he overruled the of defense counsel admission of the statements appellant during interrogation. interrogation
Prior to the was told he had a right attorney, to call an attorney to have an present if he wished, and that appoint the court would lawyer him a if he was unable to hire one. He was also right told he had a lawyer during have a interrogation with him even if he could not afford However, to hire one. he was then advised way giving you that “We have no lawyer but one will be appointed you, you go if and when to court and the court you finds that pauper.” are a from drawn could agree, is, an inference I
There him pauper counsel have appellant could advice from flow could interrogation. inference during This his interrogation until postpone the could somehow advice that he indigency be deter- would hearing his at which after court appel- possibility appointed. The and counsel mined infer- make this might non-lawyer, able have been lant, a mandatory given him, not meet does the advice ence from Justice Warren Miranda case. As Chief requirements in the Miranda case: wisely said the accused required to relieve not are authorities “While of obligation take advan- not to they poverty, have the justice. Denial of indigence
tage in the administration interrogation while indigent time of at the counsel to would be attorney afford one allowing who can to those an logic sit- than the similar reason or supportable no more uation *14 in v. Gideon appeal down struck at trial and on Wainwright. . . . interrogated fully apprise person a of the “In order necessary rights system then, under this it is extent of right only he has to consult with to warn him not that the indigent lawyer attorney, a will be an but also that if he is represent appointed ing, him. this additional warn- Without right with counsel the to consult the admonition of meaning only can as that he con- would often be understood lawyer funds to obtain if he one or has the sult with a one. has warning right would be hollow The of a to counsel indigent— convey that to the not couched in terms would interrogation subjected person most the often —the knowledge right present. a he too has to have counsel warnings right silent and of of the to remain As with the express right counsel, only by general the effective indigent right can there be assur- explanation to the of this (Em- truly position in to exercise it.” ance that he added.) 472, at phasis 384 U. S. 473. interrogating requires The Miranda case officials the to the defendant about to be make a clear and direct statement right interrogated pauper pres- counsel that he has a to have interrogation in the event he has no means to at his ent interrogating officials in employ this case made no one. statement. direct such
252
Dissenting Opinion Jackson, agree am J. I unable to with the conclusions majority opinion reached and dissent thereto.
My Judge vigorous colleague, DeBruler, has dis- written adequate warning sent on lack Miranda of under the rule .case, in this in which I For that I dissent concur. reason deem unnecessary, dissent, it ques- in this to further discuss tion.
I following take issue wording major loose of the ity opinion reading “Appellant as follows: has failed to over prima come admissibility facie confession satis fying the showing burden incompetency.” My colleagues its reverting are procedure permit to the rules civil which prima facie proof rule and where the burden of can shift from plaintiff to practice defendant. In pre criminal law all sumptions, against intendments are inferences State defendant, favor of proof always and the burden of rests on the shoulders the State and never shifts to the (1928), defendant. Fehlman 746, v. State 199 Ind. 161 N. E. 8; Welty (1913), v. State 100 N. E. 73. disagreement
I complete note with some interest and majority large degree opinion relies to on the case of Jersey Sylvester New Johnson, al. et appears pages J. 2dA. 13 and 14 majority opinion, for the rationale in the remain- enunciated opinion. majority der of that As approval the case and the appears opinion, brevity their is in it the interest of *15 law, ample omitted prece- here. Indiana has in our case own dent, analytical thinking, buttressed careful that makes v. State unnecessary. resort to out of state Simmons decisions Dennis v. 489, 121; (1955), 234 129 N. 2d Ind. E. State Parker v. State 210, 650; (1952), 230 102 N. E. Ind. 2d v. State 556; (1949), 1, 228 88 Ind. N. E. 2d Hawkins (1941), v. State 116, 79; 219 (1921), Ind. 37 E. 2d Gaines N. 191 Ind. v. State 580; 262, (1911), N. Messel 214, 132 E. 176 Ind. 95
253 E.N. (1904), 163 Ind. 565; E. Griffiths Law, 563; Vol. Wharton’s Criminal §359. State, and by the bar, produced in case
The evidence the effect is to by any any witness in manner uncontradicted any been disturbed money had not in the tavern appellant’s than any other manner, evidence was there nor any to rob intent extra-judicial ever was confession that there Police business. place of attempt rob the or his to decedent money he counted testified that Robert Johnson Officer evening. same and son-in-law turned it over to decedent’s $239.15, register money the cash The total amount of regis- cash bag side of plastic a left in the cabinet drawer cigar in the money in box a $300.00, a ter contained total a contained $38.00, the safe same contained a drawer total right cash $288.20, cigar side box on total $20.67, there register Money a total of marked Tax contained containing a total plastic tubes on the back bar were some at the tavern counted then testified he witness This $21.25. grand in checks for in cash and total of $605.27 $620.53 son-in- to decedent’s $1,233.80 over which he turned total law, Warren Antoine. appears
It thus facts in this case are on all fours with Hayden supported by v. State N. E. 2d 102. opinion in the statement relative dicta and confusion attempting majority opinion all herein to overrule contrary majority herein, opinion
statements or cases my opinion regret. is in bad law and one that this Court will substituting expediency It me are seems to that we here hysteria judgment. for deliberation and a rule of
There is
law
the effect that what
the State
charges
proven,
in an indictment or affidavit must be
even if
unnecessary
charges
it
to make
all the
in-
the first
having
charge appel-
stance.
In this
the State
case
elected
felony
attempting robbery
murder while
lant with
must
*16
now,
legally
prove
appellant,
the defendant-
order
convict
beyond
attempt as well as
both the intent and
the homicide
Having
they
reasonable doubt.
elected to bear
burden
discharge
(1950),
it.
v. State
228 Ind.
must
Abraham
858;
Cutsinger
Spencer
E. 2d
ex rel.
McPhearson v. State Indiana. Rehearing January 28, [No. 768S112. Filed December 1969. denied
1970.]