— Thе defendant, Octavia Rogers, was tried by jury and found guilty of first-degree murder. The jury sentenced her to life imprisonment. The trial court changed the sentence to twenty years’ imprisonment. The defendant appeals and presents three issues for our review:
1. Did the trial court err in denying defendant’s motion for a directed verdict?
*190 2. Did the trial court err in admitting into evidence a post-mortem photograph of the deceased?
3. Did the triаl court err in admitting into evidence a photograph of the victim’s porch and rеsidence?
The evidence most favorable to the state shows that on the evеning of July 2,1977, a group of people were gathered on and around the defendаnt’s porch. The defendant called to the deceased, Hallie Brooks (also known as “Buster” or “Bussie”) and asked him whether one of her former boyfriends had been seen with another woman at a liquor store. Brooks’s reply was in the affirmative. The defendant was called inside to the telephone; when she returned, she told Brooks to go hоme. Brooks hesitated, trying to talk to the defendant. Defendant again told Brooks to gо home; then she hit him and knocked him down. Brooks got up; defendant knocked him down again, аnd Brooks’s head hit the sidewalk. A Reverend Hayden tried to break up the fight, and then he went tоward his car. Brooks pulled defendant’s wig off, and the defendant said, “Nigger, you pulled my wig off.” She pulled an object from her pants and began hitting Brooks with it. The defendant’s daughter cаme from the house, and Brooks started to run away — toward his own house. As he ran away, the defendant shot him in the back. Brooks died on his porch steps.
I.
Of the four elements necessary for conviction of first-degree murder, the defendant asserts that the state fаiled to prove premeditation. We have held that premeditation need not continue over a protracted time period but rather may be as instantaneous as successive thoughts.
Owens v. State,
(1975)
II.
Next the defendant argues that the court erred in admitting two photographs — one of the porch and steps of the decеased’s residence and the other of the deceased. Witnesses testified regarding the objects and scenes depicted in the photographs. Thus, the photogrаphs were clearly relevant.
White v. State,
(1978)
III.
Upon appеal, the state argues that the trial court erred in imposing a twenty-year sentencе in light of the jury’s recommendation of life sentence. There was error. The crime was committed on July 2,1977. At that time, Ind. Code § 35-13-4-1 (Burns 1975) was in effect. That statute provides that whoever “is guilty of murder in the first degree and, on conviction,
shall be imprisoned in the state prison during
life____” (Emphasis added.) The trial judge had no authоrity to sentence the defendant for any other period. Since the error in the sentence is fundamental and apparent on the face of the record, wе consider it for the first time on appeal.
Beasley v. State,
(1977)
Now, therefore, this cause is remanded to the trial court with instructions and for further proceedings not inconsistent with this opinion. In all other aspects, the judgment of the trial court is affirmed.
NOTE — Reported at