*252Dissenting Opinion
Jackson, J.I am unable to agree with the conclusions reached in the majority opinion and dissent thereto.
My colleague, Judge DeBruler, has written a vigorous dissent on the lack of adequate warning under the Miranda rule in this .case, in which dissent I concur. For that reason I deem it unnecessary, in this dissent, to further discuss that question.
I take issue with the following loose wording of the majority opinion reading as follows: “Appellant has failed to overcome the prima facie admissibility of the confession or satisfying the burden of showing its incompetency.” My colleagues are reverting to the rules of civil procedure which permit the prima facie rule and where the burden of proof can shift from plaintiff to defendant. In criminal law and practice all presumptions, intendments and inferences are against the State in favor of the defendant, and the burden of proof always rests on the shoulders of the State and never shifts to the defendant. Fehlman v. State (1928), 199 Ind. 746, 161 N. E. 8; Welty v. State (1913), 180 Ind. 411, 100 N. E. 73.
I note with some interest and complete disagreement that the majority opinion relies to a large degree on the case of State of New Jersey v. Sylvester Johnson, et al. (1960), 31 N. J. 489, 158 A. 2d 11, as appears at pages 13 and 14 of the majority opinion, for the rationale enunciated in the remainder of that opinion. As the case and the majority approval appears in their opinion, it is in the interest of brevity omitted here. Indiana has in our own case law, ample precedent, buttressed by careful analytical thinking, that makes resort to out of state decisions unnecessary. Simmons v. State (1955), 234 Ind. 489, 129 N. E. 2d 121; Dennis v. State (1952), 230 Ind. 210, 102 N. E. 2d 650; Parker v. State (1949), 228 Ind. 1, 88 N. E. 2d 556; Hawkins v. State (1941), 219 Ind. 116, 37 N. E. 2d 79; Gaines v. State (1921), 191 Ind. 262, 132 N. E. 580; Messel v. State (1911), 176 Ind. 214, 95 *253N. E. 565; Griffiths v. State (1904), 163 Ind. 555, 72 N. E. 563; Wharton’s Criminal Law, Vol. 1, §359.
The evidence in the case at bar, produced by the State, and uncontradicted in any manner by any witness is to the effect that the money in the tavern had not been disturbed in any manner, nor was there any evidence other than appellant’s extra-judicial confession that there was ever any intent to rob or attempt to rob the decedent or his place of business. Police Officer Robert Johnson testified that he counted the money and turned it over to decedent’s son-in-law that same evening. The total amount of money in the cash register was $239.15, a plastic bag in the cabinet drawer left side of the cash register contained a total of $300.00, money in a cigar box in the same drawer contained a total of $38.00, the safe contained a total of $288.20, a cigar box on the right side of the cash register marked Tax Money contained a total of $20.67, there were some plastic tubes on the back bar containing a total of $21.25. This witness then testified he counted at the tavern a total of $605.27 in cash and $620.53 in checks for a grand total of $1,233.80 which he turned over to decedent’s son-in-law, Warren Antoine.
It thus appears the facts in this case are on all fours with and supported by Hayden v. State (1964), 245 Ind. 591, 199 N. E. 2d 102.
The statement in the opinion relative to dicta and confusion and attempting by the majority opinion herein to overrule all statements or cases contrary to the majority opinion herein, is in my opinion bad law and one that this Court will regret. It seems to me that we are here substituting expediency and hysteria for deliberation and judgment.
There is a rule of law to the effect that what the State charges in an indictment or affidavit must be proven, even if it was unnecessary to make all the charges in the first instance. In this case the State having elected to charge appellant with the felony murder while attempting robbery must *254now, in order to legally convict the defendant- appellant, prove both the intent and attempt as well as the homicide beyond a reasonable doubt. Having elected to bear that burden they must discharge it. Abraham v. State (1950), 228 Ind. 179, 91 N. E. 2d 858; State ex rel. Cutsinger v. Spencer (1941), 219 Ind. 148, 41 N. E. 2d 601.
Finally, I have always been of the opinion that a violent homicide, without justification, “was criminal in nature.”
The judgment of the trial court should be reversed and remanded with instructions to grant appellant’s motion for a new trial.
Note. — Reported in 252 N. E. 2d 572.