dissenting.
I respectfully dissent from the majority opinion. I find the majority’s analysis of the court’s Instruction No. 15 is wholly unacceptable. It is beyond comprehension that any person could read the court’s instruction and come to the conclusion that the jury was not required to find that appellant intended to kill the victim when he fired the shot.
The majority goes on to state the circumstance of the shooting, observing that the jury could have found that appellant did not intend to kill the victim when he fired the shot. However, this is not the issue upon which the case is reversed. It was, of course, for the jury to determine the facts as to whether appellant intended to kill the victim. This they did. It is not proper for us to second-guess that prerogative. Alfa-ro v. State (1985), Ind., 478 N.E.2d 670. The majority opinion turns solely on the language of an instruction which I would hold to be entirely proper.
The trial court should be affirmed.