Dissenting Opinion
Jackson, J.I am not able to agree with conclusions reached in the majority opinion and therefore dissent thereto.
This is an appeal from a conviction on a charge of commission of a felony while armed. Appellant was charged by affidavit, which in pertinent part reads as follows, to-wit:
“BE IT REMEMBERED, That, on this day before me, NOBLE R. PEARCY Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came JAMES F. MELLENE who, being duly sworn, upon his oath says that JAMES LARRY KIDWELL on or about the 6th day of February, A.D. 1964, at and in the County of Marion in the State of Indiana, being then and there over the age of sixteen (16) years, did then and there unlawfully and feloniously commit the crime of rape, by then and there having carnal knowledge of ISABEL J. HEMMINGSEN, a woman, forcibly against her will, she, the said ISABEL J. HEMMINGSEN then and there not being the wife of said JAMES LARRY KIDWELL, while he the said JAMES LARRY KIDWELL was then and there armed with a deadly weapon, to-wit: a KNIFE then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.”
On February 14, 1964, appellant filed his motion for change of venue from the judge, and pursuant to agreement of the parties, Hon. Glenn W. Funk was selected as special judge.
On June 22, 1964, this matter came on for trial before a jury, and thereafter on the 26th day of June, 1964, the jury returned the following verdict.
*436“We, the Jury, find the defendant, JAMES LAEEY KIDWELL, guilty of Commission of a Felony while Armed, as charged by the Affidavit, and that he shall be imprisoned in the Indiana State Prison for 20 years, and that his age is 19 years.”
Following the rendition of the verdict the jury, at the request of the appellant was polled; thereafter the court ordered a presentence investigation and fixed June 29, 1964, for sentencing.
After the filing of the pre-commitment report by the Probation Department, the appellant filed a Motion in Arrest of Judgment alleging therein,
“1. That the defendant was found Guilty of the offense of Commission of a Felony While Armed.
“2. That the facts stated in the affidavit do not constitute a public offense.”
Said motion was immediately overruled by the court. On the appointed day appellant was sentenced agreeably to the verdict of the jury and this appeal followed.
Appellant’s assignment of error contains the single specification, “[t] hat the Court erred in overruling appellant’s motion for new trial.”
The motion for new trial contains thirty-five specifications. Only four of the specifications are dealt with by the appellant in the argument section of his brief. All other assignments of error raised in the motion for new trial are waived. Supreme Court Kule 2-17 (f). The assignments of error urged by the appellant in his brief all go to his contention that the facts stated in the affidavit do not constitute a public offense. More specifically, appellant argues that a knife is not a deadly or a dangerous weapon as contemplated and intended under Acts 1929, ch. 55, § 1, p. 139, § 10-4709 Burns’ 1956 Eeplacement, the pertinent parts of which read as follows:
“Any person who being over sixteen [16] years of age, commits or attempts to commit . . . the crime of rape . . . while armed with a pistol, revolver, rifle, shotgun, machine *437gun or any other firearm or any dangerous or deadly weapon . . . shall be guilty of a separate felony in addition to the crimes above named. . . .” (Emphasis supplied).
It is the appellant’s position that under the ejusdem generis rule a knife cannot be a deadly weapon within the meaning, of the above statute. It is a fundamental rule of statutory construction that criminal and penal statutes should be strictly construed in favor of the accused and against the State. Shaw v. State (1965), 247 Ind. 139, 211 N. E. 2d 172; Simmons v. State (1955), 234 Ind. 489, 497, 129 N. E. 2d 121; Kelley v. State (1954), 233 Ind. 294, 298, 119 N. E. 2d 322.
The rule of ejusdem generis is that where words of a particular description in the statute are followed by general words that are not so specific and limited, unless there be a clear manifestation of a contrary purpose, the general word or words are to be construed as applicable to persons or things or cases of like kind, as are designated by the particular word or words. In other words, the general words are limited by the specific words. Short v. State (1954), 234 Ind. 17, 22, 122 N. E. 2d 82; Dowd, Warden v. Sullivan (1940), 217 Ind. 196, 201, 27 N. E. 2d 82; McNamara v. State (1932), 203 Ind. 596, 600, 181 N. E. 512.
The pertinent words of the statute are “while armed with a pistol, revolver, rifle, shotgun, machine gun or any other firearm or any dangerous or deadly weapon.” By application of the rule of ejusdem generis to the statute in question, a knife definitely does not fall within the term “deadly weapon,” the specific words all refer to firearms, thus the words “dangerous or deadly weapon” are mere surplusage and in the case at bar are to be disregarded.
Under the statute on which this prosecution is based a knife is not per se a dangerous or a deadly weapon because the term knife is specifically omitted from the statute. In the case at bar we cannot read into the statute a meaning that *438is not included therein. We deem it unnecessary to further belabor the subject.
Appellant’s position at the trial was that the alleged rape was not a rape, but was a voluntary act on the part of the prosecuting witness with the appellant, and that the element of force did not enter into the act. The jury heard the evidence, including the testimony of the appellant, and by their verdict decided adversely to appellant. In the absence of a clear abuse, we are not inclined to disturb the verdict of the jury, when it is their duty to make the determination as to what evidence they shall believe and that which they may disbelieve.
In the case at bar the crime of rape was consummated and the jury so found by its verdict. The crime of rape is necessarily a lesser and included offense within the purview of the statute "... commits or attempts to commit either the crime of rape . . .” (§ 10-4709, Burns’, supra.)
The cause should be remanded with instructions to the trial court to correct the verdict and judgment heretofore herein rendered to conform to the finding and mandate herein that the appellant is guilty of the crime of rape as defined by Acts 1941, ch. 148, § 3, p. 447, § 10-4201, Burns’ 1956 Replacement, and to fix his punishment in accordance with the provisions of such statute.
Mote, J. concurs.
Note. — Reported in 230 N. E. 590.