Dissenting Opinion
DeBruler, J.The testimony of the accomplice, Irving Webster, and that of the storekeeper constituted the State’s main evidence which singled out the accused as the one who had in fact shot the storekeeper in the course of this robbery. The accomplice denied on cross-examination that he had received assurances from the State that he would benefit by his cooperative stance. The defense then called the accomplice’s lawyer to the stand. This was done in an attempt to establish *313whether the State had procured the accomplice’s testimony by promises of prosecutorial leniency in the disposition of the pending charge against him for his admitted participation in the crime for which the accused was being tried, and thus to impeach his credibility. I agree with the majority that under the circumstances of this case the trial court committed error when he prevented the defense from questioning the lawyer for this purpose. I do not, however, agree with the majority in its further conclusion that this error was harmless.
As pointed out by the majority, the storekeeper’s identification was of questionable persuasive force, since he had identified another as his assailant prior to trial. If then, Irving Webster’s bias and interest had been' shown by proof of promises of leniency, the jury might well have chosen to disbelieve him and then concluded that all of the State’s evidence failed to show, beyond a reasonable doubt, that the accused had inflicted injury, and thereupon arrived at a different decision. In my opinion the trial court error was not without prejudice to the substantial rights of the accused. Harvey v. State (1971), 258 Ind. 473, 269 N. E. 2d 759; Adams v. State (1946), 224 Ind. 472, 69 N. E. 2d 21; IC 1971, 35-1-47-9, being Burns § 9-2320.
The State, in support of its harmless error contention cites IC 1971, 35-1-29-1, being Burns § 9-102, which reads as follows:
“Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command, or otherwise procure a felony to be committed, may be charged by indictment, or affidavit, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted; and, upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.”
It is the theory of the State, adopted by the majority opinion, that even if the jury had chosen to disbelieve the evidence presented which tended to prove the accused had actually inflicted the wound, there is still ample evidence, in the form *314of the accused’s own confession, in which he admits to driving the getaway car for those who actually committed the robbery and inflicted the wound, and that such evidence alone would still be sufficient to support the jury’s verdict, since it would be sufficient to show his guilt as an accessory to the crime of inflicting the injury during the robbery. This contention would be valid, and would constitute a valid basis for the determination that the exclusion of the disputed evidence was harmless error if, and only if, the jury had been instructed on the concept of accessory. In this case the jury received no instruction covering Burns § 9-102, supra, or the concept of accessory. The choice of the State, not to rely upon the accessory concept at trial, should in my opinion make it inappropriate for this Court to rely upon such concept on appeal, either in reviewing the sufficiency of the evidence, or in determining whether a particular error at trial was harmless.
This trial, as it must have been viewed by the jury, did not call upon it to determine any elements other than those contained in the charges which were, in the case of the charge of inflicting an injury in the commission of robbery, that the accused did, in the course of a robbery, shoot and wound the storekeeper. The main evidence of the State, the charges themselves, as well as the legal instructions to the jury, were all specifically calculated to focus the attention of the jury upon the elements of the offense as charging appellant as a principal and not as an accessory. The appellant is entitled to a jury trial upon the issue of whether his connection with the main offense was of such a nature as to constitute aiding and abetting or assisting. This Court should not review a case and determine for any purpose that the evidence is sufficient to show an accused guilty as an accessory, until the merits of that issue have been fairly tried and determined in the court below. This Court should accept the case on appeal as it was tried below. The majority views it as though the State had asked for and obtained a jury instruction defining the concept of accessory. This is appellate error in my view.
*315Finally, I would point out, that I do not consider my position to be one of extreme technicality or of splitting of legal hairs. Substantial rights of the accused are directly affected by our application of the concept of accessory. One can easily imagine a case in which the connection of the accused with the prinipal crime is more attenuated than that which exists in this case where the evidence tends to show that the accused drove the getaway car. Events which show an aiding, abetting or assistance by the accused may have been shown by the evidence to have occurred hours before the crime and at a place far distant from the scene of the crime. If the case is tried, as this one was, in such a manner as to focus attention upon the time and place of the crime and no instruction is given defining accessory, there is no assurance that the jury determined the earlier events to have occurred beyond a reasonable doubt, or that those events duly found to have occurred beyond a reasonable doubt constituted aiding, abetting or assisting in the commission of the offense. Surely this Court should not review such a case upon the basis that the evidence of prior events supports the verdict of the jury. It is clearly unreasonable to conclude in this hypothetical case, as well as in the actual case at bar, that the events shown by the evidence which tend only to show the defendant guilty as an accessory, support the jury’s verdict that he was guilty as a principal.
Note. — Reported in 302 N. E. 2d 763.