dissenting.
1 respectfully dissent from the majority opinion in this case. In appellants' petition to transfer, they claim this Court's opinions have "reached such disparate and different results based on essentially similar factual situations that there is no longer any principled or reasoned way to differentiate the differing outcomes of cases." In so stating, appellants are referring to our various cases concerning what is a proper instruction in attempted murder cases.
To the extent the appellants' statement be true, the confusion is brought about by statements which are now followed by the majority in this case. The majority sets out Instruction No. 6, wherein the trial court instructed the jury that the State must have proved:
"'The defendants
1. knowingly or intentionally
2. [struck, stabbed] and cut the body of Robert Grubbs,
*9523. that the conduct was a substantial step toward the commission of the crime of murder."
In his memorandum opinion in the Court of Appeals, Judge Conover states,
''There can be no doubt that the instructions here are sufficient to inform the jury of the necessity of finding the defendants intended to kill Grubbs."
I fail to see how there can be any doubt that Judge Conover's observation is correct.
If, as found by the majority, his statement is erroneous, we then have the anomalous situation in this State that had Grubbs died, the appellants could have been convicted of murder because of their use of a deadly weapon in a manner calculated to cause death. Yet, when they engage in precisely the same conduct and the victim does not die, they cannot be found guilty of attempted murder unless the State by some as-yet-unperceived divining rod can penetrate their brains and determine whether they intended to kill the vie-tim without taking into any consideration whatsoever their acts in attempting to perpetrate such a crime. Today's majority opinion, instead of clearing the air on this subject, leaves prosecuting attorneys and trial courts in an implausible and impossible position.
The majority also has instructed trial courts not to use the instruction that the presumption of innocence is not intended to prevent just punishment of the guilty. This is a stock instruction that has been used for many years. I believe it serves a purpose in aiding lay jurors in understanding the intention of the law. I believe it is a useful instruction that should be given.
Because Judge Conover's opinion is right on target, I would deny transfer.