dissenting.
I dissent. I agree, as explained by the majority opinion, that Appellant has misconstrued Smith v. State (1984), Ind., 459 N.E.2d 355. The instruction, nevertheless, was erroneous, because it did not convey the message that it is the accused's state of mind when he took the "substantial step" that determines whether or not he attempted the ultimate crime of murder. This is a thing apart from whether he took the "substantial step" intentionally or merely knowingly. f
The crime proscribed is an attempt to commit murder-not an attempt to attempt to commit murder. An intention to effect a particular result is inherently embodied in an attempt to do so. The intent may exist apart from the attempt, but the attempt may not take place without the intent.
The point of Smith, supra, is that although murder, as defined by our statute, may be committed without an intent to kill, attempted murder cannot be committed without an intent to kill,
In Smith the instruction referred to engaging in conduct that constituted a substantial step toward the commission of murder. Murder, by statutory definition, is the killing of another human being knowingly or intentionally. In the case at bar, the instruction referred to knowingly or intentionally killing of another human being. Knowingly or intentionally killing of another human being is murder. The two instructions say the same thing.
The instruction was bad for the same reason it was bad in Smitk. It did not advise the jury that in order to prove the crime charged it was necessary to prove that the "substantial steps" were taken with the intention of killing another human being.
Given our present statutory definitions of murder, it is clumsy and probably futile to attempt to define the crime of attempted murder by combining the words of the two statutes. It also appears to be needless. An attempt is conduct intended to product a particular result. If the result intended is to kill a human being, then the conduct is attempted murder. The attempt to define the crime charged in terms employed by the two statutes simply complicates a simple matter, and the instruction should have been: "To convict the defendant of the crime of attempted murder, the State must have proved that the defendant intended to kill a human being and took a substantial step to do so."
I would reverse the conviction upon the count appealed and remand for a new trial under instructions in accordance with the foregoing.