Indiana Law Review


Indiana La¥i^ Reviei^
Volume 10 1976 Number 1

Survey of Recent Developments in
Indiana Law

The staff of the Indiana Law Review is pleased to publish
its fourth annual Survey of Recent Developments in Indiana Law.
This survey covers the period from June 1, 1975, through May
31, 1976. It combines a scholarly and practical approach in em-

phasizing recent developments in Indiana case and statutory law.

Selected federal statutory developments are also included. No
attempt has been made to include all developments arising dur-
ing the survey period or to analyze exhaustively those develop-

ments that are included.

I. Foreword: Indiana's Bicentennial Criminal Code

William A. Kerr*

After a six year period of study and debate, Indiana has

finally joined the growing number of states that have recently
revised and modernized their criminal codes.' Although not planned

as a bicentennial project, the state's new criminal code was enacted,
appropriately enough, during the celebration of the nation's bi-

centennial.^ The project began in April of 1970 when the Indiana

*Professor, Indiana University School of Law—Indianapolis; Executive
Director, Indiana Judicial Center; Member and Secretary of the Indiana
Criminal Law Study Commission and the Criminal Code Interim Study Com-
mission; LL.M., Harvard University, 1958.

'Other states which have recently enacted new or revised criminal codes
include the following: Iowa [4 lowA Legislative Serv. 577-776 (1976);
(Iowa Criminal Laws, Senate File 85), effective Jan. 1, 1978]; Kentucky

[Ky. Rev. Stat. Ann. §§ 500-34 (1975), effective Jan. 1, 1975]; Ohio [Ohio
Rev. Code Ann. §§2901-2929 (Page 1975), effective Jan. 1, 1974]; Pennsyl-
vania [18 Pa. Cons. Stat. Ann. §§ 101-7504 (1973), effective June 6, 1973];
Texas [Tex. Penal Code Ann., §1.01-47.09 (Vernon 1974), effective Jan.

1, 1974]; and Washington [Wash. Rev. Code §§ 9A.04.010-9A.88.100 (1976),
effective July 1, 1976].

^See Pub. L. No. 148, 1976 Ind. Acts. 718.



2 INDIANA LAW REVIEW [Vol. 10:1

Criminal Law Study Commission was created,^ and it continued
for the next six years as the commission prepared first a proposed
procedural code and then a new substantive code.

Work was begun in 1970 on both the procedural and the sub-
stantive codes, but the procedural code was completed first and
was submitted to the Indiana General Assembly in 1973. The Gen-
eral Assembly enacted only approximately one third of the proposed
code, however, because of opposition that developed to the re-

maining sections which proved to be highly controversial.* The
substantive code was completed and was submitted to the General
Assembly in 1975, but the legislators deferred action on it for one
year to permit further study and review. Finally, the proposed
code was enacted in 1976, but only after numerous revisions in
the code as prepared by the Study Commission, including a major
rewriting of the sentencing provisions. Furthermore, the code was
enacted only after the legislature decided to defer its effective

date until July 1, 1977, to permit another year of study and time
for the legislature to make any additional revisions found to be
necessary. An interim study commission was appointed after the
enactment of the code, and it is currently working on a report
which will be submitted to the General Assembly in 1977.

As enacted, the new substantive code consists of eight parts
or divisions, entitled "Articles." The first article (article 41)
covers general matters such as jurisdiction, culpability, defenses,

and bars to prosecution, and the last article (article 50) contains
sentencing provisions. The remaining articles set forth various
crimes and offenses grouped into six general categories, including

offenses against the person (article 42), offenses against prop-

erty (article 43), offenses against public administration (article

44), offenses against public health, order, and decency (article

45), miscellaneous offenses (article 46), and offenses involving
controlled substances (article 48).

A. General Substantive Provisions (Article J^l)

1 . Culpability

One of the most confusing aspects of Indiana's criminal
statutes has been the use of terms such as "intentionally," "know-

ingly," "wilfully," and "recklessly" to denote the requisite degree

^The Indiana Criminal Law Study Commission was created in April
1970 by an Executive Order of the Governor and was funded by the State of
Indiana and the Law Enforcement Assistance Administration through the
Indiana Criminal Justice Planning Agency.

^Compare Indiana Criminal Law Study Commision, Indiana Code op
Criminal Procedure: Proposed Final Draft (1972), with Pub. L. No. 325,
1973 Ind. Acts 1750.



1976] SURVEY—FOREWORD 3

or degrees of culpability for offenses. The drafters of the new
code attempted to overcome this confusion by using only the terms
"intentionally," "knowingly," and "recklessly" to specify degrees
of culpability, by including definitions for each of these terms,'
and by clearly stating the requisite degree or degrees of culpability
in the definition of each offense. This effort should help to clarify

the confusion that has existed, but it will probably not eliminate

all of the confusion because of the difficulty involved in defining

the terms. For example, "knowingly" is defined to include conduct
engaged in by a person who "is aware of a high probability that
he is doing so."^ Likewise "recklessly," as defined, includes a

reference to a "gross deviation from acceptable standards of con-
duct."' Undoubtedly, there will be much debate and litigation con-
cerning such definitions and the Indiana appellate courts will

have to clarify the terms on a case-by-case basis.

2. Defenses

Ten specific defenses are grouped together in one chapter
of the first article of the new code, but there is no provision stat-
ing that these are or are not to be considered the only possible

defenses in criminal cases. An indication that the listing of de-
fenses is not to be considered exclusive, however, may be drawn
from the fact that the legislature revised the recommendation of
the Study Commission in a different section and explicitly created
an eleventh defense. In defining a voluntary act, the commission

stated that possession "is a voluntary act if the offender was
aware of his control thereof for a sufficient time to have been

able to terminate his possession."® The legislature revised this
to state that "it is a defense that the person who possessed the

^See IND. Code §35-41-2-2 (Burns Supp. 1976). [Citations herein to

IND. Code are to Bums' Code Edition of Indiana Statutes Annotated. Those
sections which have been repealed effective July 1, 1977, are so designated;

all sections cited to "Burns Supp. 1976" are from the new code and are
effective July 1, 1977.]

In its proposed version, the commission also included a definition for

the term "wilfully." The commission recommended that the term "wilfully"

be read into any statute enacted without a provision concerning either a

degree of culpability or strict liability and that "wilfully" should be defined

to include conduct engaged in intentionally, knowingly, or recklessly. This

provision was omitted by the General Assembly. See Indiana Criminal Law
Study Commission, Indiana Penal Code: Proposed Final Draft 13 (1974)
[hereinafter cited as Penal Code: Proposed Final Draft].

*IND. Code § 35-41-2-2(b) (Burns Supp. 1976).
'Id. § 35-41-2-2 (c).

'Penal Code: Proposed Final Draft, supra note 5, at 11.



4 INDIANA LAW REVIEW [Vol. 10:1

property was unaware of his possession for a time sufficient for
Mm to have terminated his possession."'

Of the eleven defenses included in this first article, two (use
of force to protect person or property and the insanity defense)
will probably require immediate amendments before the code is
to become effective and a third (avoidance of greater harm) may
be sufficiently controversial to require a revision or complete

elimination. Only three (unknowing possession, legal authority,
and intoxication) would probably be considered noncontroversial.
The other five defenses will probably not be revised by the legis-
lature but do make significant changes in the existing law or raise
serious questions of interpretation.

a. Defense of person or property—. Various provisions con-
cerning the defense of persons and property are grouped together
in the new code. Three specific provisions relate to the use of
force to protect a person, a dwelling, or property other than a
dwelling. '° Although these provisions generally reflect existing
law in Indiana, a major change is included in the provision con-
cerning the defense of a person.

Under a statute enacted in 1971, a i)erson was authorized to
defend "himself or his family by reasonable means necessary"
or when going to the aid of another person "whom he reasonably
believes to be in imminent danger of or the victim of aggravated
assault, robbery, rape, murder or other heinous crime."" This
statute raised certain procedural questions, ^^ but it also confused

the nature of self-defense in Indiana. The statute clearly extended
the right of a person to act on the mistaken belief that another

person was in imminent danger but limited that right to certain
specified offenses. At the same time, the statute could be inter-
preted as limiting the right of a person to defend himself or his

family to those cases in which harm was actually threatened. The
new code eliminates the confusion by providing that a person may
defend himself or any other person when acting on a reasonable
although mistaken belief that harm is being threatened.'^ The pro-
vision makes no distinction concerning the nature of the crime or
offense being threatened except with reference to the right to use

deadly force. In this regard, the code provides that deadly force

'IND. Code § 35-41-2-1 (b) (Burns Supp. 1976). The code also includes
special defenses with reference to child molesting (id. § 35-42-4-3) and bigamy
(id. §35-46-1-2).

'°Id. § 35-41-3-2.

''Id. §35-13-10-1 (Burns 1975) (repealed effective July 1, 1975).

'^See Loza v. State, 325 N.E.2d 173 (Ind. 1975).

'^IND. Code § 35-41-3-2(a) (Burns Supp. 1976).



1976] SURVEY—FOREWORD 5

may be used only to prevent serious bodily injury or the commis-
sion of a forcible felony.

The latter limitation reflects existing law and undoubtedly
was an implied limitation upon the 1971 statute, but the code con-
tains an inconsistency with reference to deadly force that should
be amended by the legislature before the code takes effect. In the
section discussed above concerning the defense of persons and in
the later section concerning defense of property other than a

dwelling, specific provisions are included concerning the right

to use deadly force. '^ No reference is made to deadly force, how-
ever, in the section concerning defense of a dwelling. This sec-
tion provides instead for the use of force "that creates a sub-
stantial risk of serious bodily injury."'^ As defined in the defini-
tions section, "serious bodily injury*' includes an injury that

"causes death," and therefore the term may in fact be the same
as "deadly force." Nevertheless, the section should be amended to
remove any doubt and to make the three sections consistent, es-
pecially since deadly force is authorized with reference to prop-

erty other than a dwelling. '*

b. Insanity— . One of the most controversial provisions in
the new code is the section referring to the defense of insanity,
and an amendment will undoubtedly be required to remove the
confusion. The code simply provides that it is a defense that a
person "lacked culpability as a result of mental disease or defect."

'^

This provision, at first reading, unfortunately appears to adopt

the Durham rule concerning insanity'* and to reject the current
defense in Indiana which is based on the recommendation of the

American Law Institute.'' Despite this appearance, this was
clearly not the intent of the Criminal Law Study Commission.
Although inartfully worded, the provision was intended merely to
recognize the existence of an insanity defense and to leave the

definition of the defense to the appellate courts. As stated in the

'^Id. § 35-41-3-2 (a) and (c).
''Id. § 35-41-3-2 (b).

""The term "deadly force" was used by the Study Commission in all

three sections. See Penal Code: Proposed Final Draft, supra note 5, at 30-36.

'^ND. Code §35-41-3-6 (Burns Supp. 1976).

'"See Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954): "[A]n
accused is not criminally responsible if his unlawful act was the product of

mental disease or mental defect." Id. at 874-75.

""See Hill v. State, 252 Ind. 601, 251 N.E.2d 429 (1969) : "A person is
not responsible for criminal conduct if at the time of such conduct as a

result of mental disease or defect he lacks substantial capacity either to

appreciate the wrongfulness of his conduct or to conform his conduct to the

requirements of law." Id. at 614, 251 N.E.2d at 436 (court's emphasis).



6 INDIANA LAW REVIEW [Vol, 10:1

commission's commentary, *The law of insanity is entirely a sub-
ject of case law in Indiana. No attempt is made to codify it.*"°
In view of the confusion created by this( section, the legislature
should amend it by substituting the language of the American Law
Institute recommendation which is currently the law in Indiana.

c. Avoidance of greater harm—. A completely new defense
was created by the legislature when it adopted, in a revised form,
the Study Commission's recommendation concerning the "avoid-
ance of greater harm."^' The provision is essentially the result of
an effort to draft a defense excusing a person who, because of
necessity, commits what would otherwise be a criminal act. The
provision, however, reflects the difficulty in drafting such a de-

fense. The section first apparently authorizes a person to weigh
the anticipated results of his conduct and to violate the law if
he reasonably believes that his conduct would prevent harm that
would be greater than the harm resulting from his conduct. The
section then makes an exception with reference to the prevention
of harm that is "social or moral harm."^^ Nowhere in the code is
there a definition of "social or moral harm." The difficulty of
stating this defense is emphasized by the fact that the legislature
changed the language that was recommended by the Study Com-
mission in this regard. The commission's version provided that
"the necessity of such conduct shall not rest upon considerations

of morality or the social policy of the penal statute defining the

offense."^ ^ Although the legislature may have considered that its
revised language made no substantive change in the defense as
proposed by the commission, the two versions do appear to be
substantially different. In view of the difficulties suggested by
this provision, it might be better to repeal the section completely

and rely upon the exercise of prosecutorial discretion to excuse

those persons who may, on occasion, be compelled to act out of
necessity.

d. Use of force relating to an arrest—. The code modifies
the existing law in Indiana and provides that a citizen may use
force to make an arrest only with reference to felonies. Further-
more, the citizen may not use deadly force even with reference
to felonies except in self-defense.^'^ This change may be relatively
unimportant because it applies only to arrests by citizens which

may rarely occur, but the same section also appears to limit the
use of force by a law enforcement officer who makes an arrest.

2°Penal Code: Proposed Final Draft, supra note 6, at 28.
2'IND. Code §35-41-3-4 (Burns Supp. 1976).

^3Penal Code: Proposed Final Draft, supra note 5, at 41.
^''Ind. Code § 35-41-3-3 (a) (Burns Supp. 1976).



1976] SURVEY—FOREWORD fl

Under this section, an officer may use force to make an arrest
but may use "force that creates a substantial risk of serious bodily
injury" only with reference to felonies or in self-defense or de-

fense of another person. If this type of force is different from
"deadly force," then an officer's authority to make an arrest has
been limited by the legislature. As discussed above, the terms
probably have the same meaning, but the provisions should be
amended to remove any doubt. The section also provides that a
person may use force to resist an arrest, but "only if the arrest
is clearly unlawful."" This section represents a change from the
provisions recommended by the Study Commission. According to
the commission's proposed version, a person may not use force
to resist any arrest which he knows is being made by an officer
nor use force to resist an arrest by a private citizen unless the
arrest is clearly unlawful.^* As enacted, no distinction is made
between an arrest by an officer and an arrest by a private citizen.
Unfortunately, the code contains no guidelines for determining

when an arrest is or is not "clearly unlawful," but this may
reflect the commission's conclusion that there is no practical way
to provide such guidelines. If so, then the appellate courts will

have to develop appropriate guidelines because this provision

clearly invites litigation.

e. Mistake of fact— . A relatively short provision in the
new code sets forth a defense that appears to be carefully drafted
but in fact raises a number of serious questions. A mistake of
fact is recognized as a valid defense, and the provision requires
that the mistake be reasonable and negate the culpability required
for the offense involved.^ ^ Both of these limitations appear to be
appropriate, but it has been contended that the defense is more
properly based on the existence of an "honest mistake" rather than
a "reasonable mistake."^^ A more serious question is raised, how-
ever, by the fact that the code makes no reference to a defense

based on a mistake of law. This might suggest that there is to be

no defense based upon a mistake of law, but the code contains no

statement that the codified defenses are considered to be exclusive,

as noted above. Therefore, the possibility exists that a defense

of mistake of law will be recognized by the courts in an ap-

propriate case." On the other hand, if the defense of mistake of
fact is to be exclusive, then the provision gives no guidance for

257d. § 35-41-3-3 (f).

2*I>ENAL Code: Proposed Final Draft, supra note 5, at 38.
^^ND. Code §35-41-3-7 (Burns Supp. 1976).
=^"W. LaFave & A. Scott, Criminal Law 356-58 (1972).
29For examples of possible cases, see id. at 362-68.



8 INDIANA LAW REVIEW [Vol. 10:1

distinguishing a matter of fact from a matter of law. F6r ex-
ample, is it a mistake of law or a mistake of fact which excuses
a person from a statutory registration requirement when the per-
son is unaware of the statutory requirement ?^° Likewise, is it a
mistake of law or a mistake of fact that excuses a person who
improperly takes property under the mistaken belief that he has
the right to do so?^'

/. Duress—. The defense of duress has been recognized in
Indiana^^ and is codified in the new code. All offenses against the
person are specifically excepted from this defense, and therefore
the drafters of the code have indicated that even a minor offense
against a person is to be considered more harmful than even the
most serious threat of harm that is posed to the person claiming
the defense of duress. Thus this section operates as a limitation
on the defense of avoidance of greater harm, assuming that the
General Assembly retains that defense, so that a person who
claims the defense of duress could not weigh the nature of the
harm to be inflicted by him on an innocent victim against the
nature of the harm threatened against himself or another person.

The provision does pose a question of interpretation, however,
because of a difference between the defense as enacted by the
General Assembly and the version recommended by the Study Com-
mission. In order to clarify the Indiana law, the commission in-

cluded a provision expressly rejecting any defense of coercion
based solely upon a marital relationship." This provision was
eliminated by the General Assembly, apparently on the assumption
that the provision was unnecessary, but the defense apparently
still exists in Indiana^"* and it might still be recognized under the

code if it is finally decided that the codified list of defenses is

not exclusive.

g. Entrapment—. As codified, the defense of entrapment
may be substantially different from the defense of entrapment
as it has been developed by the Indiana appellate courts. The

code emphasizes that entrapment has two distinct elements, in-
ducement by a public agent and a predisposition by the suspect

involved.^^ Whereas the Indiana Supreme Court has suggested at

times that inducement can be shown by even a limited amount of

^°See Lambert v. California, 355 U.S. 225 (1957).
3^566 IND. Ck>DE §35-17-5-7 (Burns 1976) (repealed effective July 1,

1977).

^^Hood V. State, 313 N.E.2d 546 (Ind. Ct. App. 1974).
33PENAL Code: Proposed Final Draft, supra note 5, at 42.

^^See McCoy v. State, 241 Ind. 104, 170 N.E.2d 43 (1960).
35IND. Code §35-41-3-9 (Burns Supp. 1976).



1»76] SURVEY—FOREWORD 9

activity by the public agent," the code emphasizes that the offense
must be the "product of a public servant using persuasion or
other means likely to cause the person to engage in the conduct.""
With regard to both the inducement and the predisposition, the
code also contains the provision that conduct "merely affording

a person an opportunity to commit the offense does not consti-
tute entrapment."" These provisions thus suggest that entrap-

ment would not occur unless the public agent engaged in a sub-
stantial amount of activity to persuade or cause a suspect to
commit an offense. In addition, the code makes no reference to
the special rule being developed in Indiana that requires an of-
ficer to have some basis for suspecting a person of illegal activity
before "baiting" a trap.^' This may indicate a legislative intent
to eliminate this special Indiana limitation on the defense of en-

trapment, although it may be argued that the requirement is a
procedural matter which is ultimately to be decided by the Indiana
appellate courts.

h. Abandonment— . In order to clarify a defense which
has not been given much consideration by the Indiana courts,^®
the drafters of the code set forth the requirements for the defense

of abandonment as applied to aiding and abetting, attempts, and
conspiracy.^ ^ With respect to aiding and abetting and attempts, a
person has a defense if he either abandons his efforts or prevents

the commission of the crime. On the other hand, a person has a
defense to conspiracy only if he prevents the commission of the

crime intended. This defense may be justified by a social policy
that would encourage persons to refrain from continuing their
criminal conduct, but the defense is of a nature completely dif-

ferent from the other defenses included in the code. Whereas the
other defenses are based upon some justification or excuse for the
person's commission of an otherwise criminal act, the defense of

abandonment may operate to relieve a person of criminal liability
because of the person's conduct subsequent to the time that the

person has in fact completed the criminal act. If the person has

taken a substantial step toward the commission of a particular

crime, that person may have actually committed the crime of at-

'"'See Smith v. State, 258 Ind. 415, 281 N.E.2d 803 (1972), and Gray v.
State, 249 Ind. 629, 231 N.E.2d 793 (1967). But cf. Thomas v. State, 345
N.E.2d 835 (Ind. 1976).

3'lND. Code § 35-41-3-9 (a) (1) (Burns Supp. 1976).
^«/d. § 35-41-3-9 (b).

^''See Locklayer v. State, 317 N.E.2d 868 (Ind. Ct. App. 1974). See also

Kerr, Criminal Law and Procedure, 1975 Survey of Recent Developmenta in
Indiana Law, 9 Ind. L. Rev. 160, 186-87 (1975).

^°iSee Hedrick v. State, 229 Ind. 381, 98 N.E.2d 906 (1951).
^'IND. Code §35-41-3-10 (Bums Supp. 1976).



10 INDIANA LAW REVIEW [Vol. 10:1

tempt as defined by the code/^ Likewise, a person would be guilty
of conspiracy if an overt act has occurred in furtherance of his
unlawful agreement/^ Instead of completely excusing a person

from criminal liability once a crime has been committed, a more
appropriate approach would seem to be a provision for the miti-
gation of punishment to be imposed if the person has taken steps
to prevent or limit the harm that otherwise would have resulted
from his criminal conduct.

3. Bars to Prosecution

The new code draws together various provisions of existing
statutory and case law concerning limitations on prosecutions and
clarifies a major question that has existed concerning prosecu-
tions by the federal government. At common law, a prosecution in
one jurisdiction would not necessarily bar a subsequent prosecu-
tion in another j urisdiction."^^ In order to change this rule, Indiana

adopted a statute which barred prosecutions in Indiana subsequent

to prosecutions in "another state, territory or country.""^^ This

statute, however, did not necessarily apply to prosecutions by the
federal government, and the Federal Constitution has not been

interpreted to prohibit subsequent state prosecutions."^* Thus the
Indiana statute was revised in the new code to provide that prose-
cutions "in any other jurisdiction" would bar subsequent prosecu-
tions in this state.^^

The new code does need further clarification, however, con-
cerning its provisions that a prosecution is barred if the defendant

has been prosecuted "for a different offense or for the same of-
fense based on different facts" and the latter prosecution is "for

an offense with which the defendant should have been charged in

the former prosecution."^® The code does not include any provi-
sions concerning mandatory joinder, and mandatory joinder is

not explicitly covered or fully developed by the provisions in the

new procedural code.'^' In particular, the code does not appear to

^27d. § 35-41-5-1.

^^Id. § 35-41-5-2.

^^See W. LaFavb & A. Scott, Criminal Law 126-27 (1972).
^^IND. Code §35-1-2-15 (Burns 1975) (repealed effective July 1, 1977).
^^See Bartkus v. Illinois, 359 U.S. 121 (1959).

^^iND. Code §35-41-4-5 (Burns Supp. 1976).
^e/d. § 35-41-4-4.

^^Mandatory joinder is apparently included in the procedural code by

reference to two provisions which otherwise appear to relate only to per-

missive joinder. The procedural code provides that two offenses "can be
joined in the same indictment or information" if based on the same conduct
or on a series of related acts. Ind. Code § 35-3.1-1-9 (a) (Bums 1975). The
code further provides that such offenses, if charged in separate indictments



1976] SURVEY—FOREWORD 11

provide any guidelines concerning the developing collateral es-
toppel doctrine."

4. Offenses of General Applicability

Although the code organizes Indiana's crimes and offenses
into five specific categories and includes an article for a group of
miscellaneous offenses (article 46), two offenses are set forth in
the first article because they may relate to any or all of the of-
fenses in each of the other categories. These are the offenses of
attempt^' and conspiracy to commit an offense.^^

One of the major changes in the entire criminal code is the
new provision concerning attempts. Under existing law, Indiana
has no general offense of attempting to commit a crime." There-
fore, a person may be prosecuted for an attempt only if there is
a specific statute making it an offense to attempt to commit a
particular offense. The inclusion of a general attempt statute in
the new code is a distinct improvement over the existing law, but
the provision, as ultimately enacted by the legislature, unfortu-
nately severely limits the extent or scope of the offense. As recom-
mended by the Study Commission, a person would have to commit
an act or fail to do an act that would constitute a "substantial step
toward the commission of the crime."^"^ This was then revised by
the legislature to provide that the person must commit a substan-
tial step toward the commission of a crime "and the crime would
have been consummated but for the intervention of, or discovery
by, another person."" Persons who attempt to commit a crime
and fail to do so because of some other reason, such as inaccurate
aim or being frightened by a dog, would not be covered by this
provision. An amendment is therefore necessary although it may
be difficult for the members of the legislature to agree on the
proper definition of a "substantial step." The offense, as defined,

or informations, "shall" be joined together for trial only by the court upon
motion of the defendant, the prosecuting attorney, "or on its own motion."
Id. § 35-3.1-1-10 (b). Under this latter provision, the court apparently has the
responsibility to join such charges even if neither party requests joinder, but

the possibility remains that the issue would be waived by a defendant's failure
to make a joinder motion.

^°See Ashe v. Swenson, 397 U.S. 436 (1970). See also Kerr, Criminal
Law and Procedure, 1975 Survey of Recent Developments in Indiana Law,
9 IND. L. Rev. 160, 190-92 (1975).

*'IND. Code §35-41-5-1 (Burns Supp. 1976).
^^Id. § 35-41-5-2.

"State V. Sutherlin, 228 Ind. 587, 92 N.E.2d 923 (1950).
^^Penal Code: Proposed Final Draft, supra note 5, at 68.
"Ind. Code § 35-41-5-1 (a) (1) (Burns Supp. 1976).



12 INDIANA LAW REVIEW [Vol. 10:1

also purports to eliminate one of the most confusing common law
defenses, the defense of impossibility. According to the new code,
a person who acts with the requisite intent or culpability is guilty
of an attempt if he engages in conduct "that would constitute the
crime if the attendant circumstances were as he believed them to
be."^* This language was recommended by the Study Commission,
and the commentary accompanying the commission's proposal
states that this provision was intended to reject the defense of
impossibility.^^ Assuming that a person's actions and accompany-
ing intent or guilty mind should be of more concern than the re-
sults of the person's conduct, the elimination of the defense does

seem appropriate and does end the confusion in distinguishing be-

tween legal and factual impossibility as a defense.^® At the same
time, the provision is open to the objection that it now permits a
person to be convicted of an attempt to commit a certain offense

despite the fact that he could not be convicted of the intended of-

fense even after completing every act that he intended to commit.

With regard to conspiracy, the new code restates much of
the existing law but does make at least three major changes. The
most obvious change is the addition of the requirement for an

overt act. An "agreement" to commit an offense was the gist of
the crime of conspiracy under the former statute,^' but the new
provision now makes the Indiana offense conform to that in other
states and in the federal system.*° The new code also provides that
the offense of conspiracy is to be of the same class as the crime

that the conspirators intended to commit. This provision therefore

provides that the penalty for conspiracy is to be the sam^e as for

the crime intended to be committed whereas the penalty for con-

spiracy under existing law could be higher than the penalty for

the crime intended.*' Finally, the code provides that the offense of

conspiracy includes a specific intent to commit the crime agreed

upon by the conspirators. This change was apparently intended

to protect a person who entered into an agreement for one purpose
only to be charged thereafter for conspiring to commit a different

offense, but it may have the effect of preventing prosecutions for
conspiracy against persons who knowingly unite to violate laws

56/d. §35-41^-1 (a) (2).
^ ''Penal Code: Proposed Final Draft, supra note 5, at 69.

^^See W. LaFave & A. Scott, Criminal Law 438-46 (1972).
^'IND. Code §35-1-111-1 (Burns 1975) (repealed effective July 1, 1977).
^^18 U.S.C. §371 (1970).

*'Lane v. State, 259 Ind. 488, 288 N.E.2d 258 (1972).



1976] SURVEY—FOREWORD 18

generally without having taken the time to reflect specifically on
the particular violation intended."

B, Offenses Against the Person (Article 42)
1 . Homicide

The organization or grouping of related offenses and the
classification of offenses according to the seriousness of each of-

fense are two of the major changes and improvements reflected
in the new criminal code. Homicide, if not the most serious, is
one of the most serious crimes and quite properly is placed at the
beginning of the code." It is grouped with other offenses against

the person and the full range of felony classifications is reflected
in its various provisions, ranging from a Class A to a Class D
felony and including the capital felony category.

a. Murder—. Murder, as defined, includes a number of
changes from the existing law. The major change, however, is the
elimination of the distinction between first and second degree
murder. First degree murder has previously been defined as the
killing of a human being purposely and with premeditated malice*^
whereas second degree murder was the killing of a human being
purposely and maliciously but without premeditation.*'' Despite
this clear definitional distinction, it has been difficult if not im-

possible to distinguish between the two degrees because of the
view that premeditation can be proved even though there is no

appreciable period of time between the forming of an intent to

kill and the carrying out of that intent.** Under the new code, the
two degrees of murder are abolished and murder is defined simply
as the knowing or intentional killing of a human being. The of-
fense is designated as a Class A felony with a determinate sentence
of imprisonment for a period of from twenty to fifty years.*^ The
murder definition also continues to include the felony-murder rule
from the prior law but adds kidnapping and unlawful sexual

deviate conduct to the prior list of arson, burglary, rape, and rob-

bery.

*^The offense of conspiracy is still limited to agreements to commit a

felony although the Study Commission recommended that the offense be

changed to include misdemeanors. See Penal CJode: Proposed Final Draft,
supra note 5, at 69.

"IND. Code §35-42-1-1 (Bums Supp. 1976).
^^/d. §35-13-4-1 (Burns 1975) (repealed effective July 1, 1977).

"/d. §35-1-54-1.

"See Sanders v. State, 259 Ind. 43, 284 N.E.2d 751 (1972); and May v.
State, 232 Ind. 523, 112 N.E.2d 439 (1953).

*^IND. Code §35-50-2-4 (Burns Supp. 1976).



14 INDIANA LAW REVIEW [Vol. 10:1

Capital murder provisions are included in the code," but the
provisions differ in a number of significant ways from the version
that was enacted in 1973/' For example, the killing of a judge is
now a capital offense. On the other hand, hijacking was eliminated
from the list of capital offense provisions but was apparently in-
tended to be included under the kidnapping provision since kid-

napping was specifically redefined to include hijacking.^® Kid-
napping was continued in the list of capital offense provisions, but
its redefinition, although expanded to include hijacking, was se-
verely limited so as to exclude all but the most serious forms of
kidnapping from the felony-murder rule. Finally, the legislature
specifically provided that capital murder would include no other
offenses. This follows the recommendation of the Study Commis-
sion^' but represents a distinct change from the version enacted
by the legislature in 1973 which specifically provided that an in-
dictment for capital murder could not charge a lesser included
offense but the defendant could be found guilty of second degree

murder or manslaughter.^^ The capital murder provisions in the
new code were enacted prior to the recent decisions of the United
States Supreme Court concerning capital punishment,'^ and it is
probable that those decisions will necessitate further amendments
in this area before the code becomes effective.

b. Manslaughter—. Manslaughter continues to be divided
into the two degrees of voluntary and involuntary manslaughter,
but involuntary manslaughter is divided into two distinct of-
fenses. The offense of voluntary manslaughter appears to be sub-
stantially revised in the new code but it may not, in fact, have
been changed to any great extent. Under the old definition, volun-
tary manslaughter was a voluntary killing without malice but in
a sudden heat.''* The offense now is defined as a knowing or inten-
tional killing under an intense passion resulting from grave and
sudden provocation.'^ This language could be interpreted to be

essentially the same, but the difference in the use of the word
"sudden" suggests the possibility of a change in the offense. Under

the prior definition, the emphasis was upon a person who acted
in a "sudden" heat whereas the new definition refers to a person

*8/(f. §35-42-1-1.

<'9/d. § 35-13-4-1 (b) (Burns 1975) (repealed effective July 1, 1977).
^°/d. §35-42-3-2 (Burns Supp. 1976).
^^See Penal Code: Proposed Final Draft, supra note 5, at 73.
^'^IND. Code § 35-13-4-1 (b) (Burns 1975) (repealed effective July 1, 1977).
^^Roberts v. Louisiana, 96 S. Ct. 3001 (1976) ; Woodson v. North Carolina,

96 S. Ct. 2978 (1976) ; Proffitt v. Florida, 96 S. Ct. 2960 (1976) ; Jurek v.

Texas, 96 S. Ct. 2950 (1976); Gregg v. Georgia, 96 S. Ct. 2909 (1976).
74IND. €ode §35-13-4-2 (Burns 1975) (repealed effective July 1, 1977).
^^Id. §35-42-1-3 (Burns Supp. 1976).



1976] SURVEY—FOREWORD 15

acting under an intense passion caused by a "sudden" provocation.
The latter definition thus might be interpreted to place a specific
limitation on the time of the provocation that is not i>ecessarily in-
cluded in the earlier definition. Finally, the legislature added what
appears to be a procedural provision in the section defining man-
slaughter, and it may well raise a serious question of interpretation.
The legislature specifically provided that the state is not required
to prove the existence of intense passion but that this is a mitigat-

ing factor which would reduce murder to voluntary manslaughter.
Two issues are suggested by this language. If a defendant is
charged with murder, this provision could be interpreted to re-

quire the defendant to prove the existence of intense passion in

order to show voluntary manslaughter. Such a requirement would
violate the Federal Constitution, and thus the provision can only
be interpreted to mean that the defendant has the burden of going
forward with some evidence of intense passion.^* On the other
hand, if a defendant is charged with voluntary manslaughter, the

provision suggests that the state has no duty to prove the exist-

ence of intense passion even though voluntary manslaughter, by
definition, appears to include the existence of intense passion as

an element of the offense. Because this would be an illogical con-
clusion, the provision may mean that voluntary manslaughter is
not to be charged directly as an offense but is only to be con-
sidered as a lesser included offense of a charge of murder.

Involuntary manslaughter, as proposed by the Study Com-
mission, was essentially the same as under the prior law except
that the commission recommended an added provision to include
reckless homicide.^^ The legislature, however, made certain changes
that may make the offen&es different. The gist of the offense
under the prior definition was the involuntary or unintentional
killing of a human being during the commission of an unlawful
act. A3 revised by the legislature, involuntary manslaughter is
now simply the killing of a human being while committing an
offense. In addition, the legislature accepted the recommendation
of the commission but created a separate and distinct offense
of reckless homicide, defined as the reckless killing of another

human being.^° With reference to both involuntary manslaughter
and reckless homicide, the legislature provided for a reduced

classification of the offense if the death was caused by an auto-
mobile. By apparently expanding involuntary manslaughter to

'^Mullaney v. Wilbur, 421 U.S. 684 (1975).

^^Compare Ind. Code §35-13-4-2 (Burns 1975) (repealed effective July

1, 1977) with Penal Code: Proposed Final Draft, supra note 5, at 80.
^«IND. Code §35-42-1-5 (Burns Supp. 1976).

I



16 INDIANA LAW REVIEW [Vol. 10:1

include even intentional killings during the commission of any
unlawful act, the legislature broadened a question that had already
existed with reference to this offense. That question is whether or
not the related unlawful acts are independent of or lesser included

offenses of involuntary manslaughter. For example, if a victim
is killed intentionally or unintentionally during the course of a
rape, is the rape a lesser included offense of involuntary man-
slaughter? If so, would the proportionality provision of the Indi-
ana Constitution^' prevent the legislature from prescribing a
greater penalty for rape than for involuntary manslaughter ?®°

An amendment may be necessary to resolve this question. Finally,
involuntary manslaughter, as newly defined, refers merely to a
killing during an "offense" without defining the type or nature
of the offense that is required for involuntary manslaughter. The
Indiana appellate courts will therefore have to decide whether
any and all misdemeanors and felonies are included, whether the
term "offense" includes only offenses that are dangerous to life,
and whether strict liability exists once an offense has been com-
mitted. Since the legislature substituted the word "offense" for
the term "unlawful act" under the prior definition and created a
specific offense of reckless homicide, it did, however, clarify one

question that had existed with reference to the prior definition.
The term "unlawful act" could be interpreted to mean not only a
criminal offense but also a lawful act committed in an unlawful
manner. By this definition, involuntary manslaughter could then
include a killing during the commission of a lawful act that was
committed negligently or recklessly. °^ The new code makes it
clear that a killing during the commission of a lawful act is a

punishable offense, provided that the act is done recklessly.

2. Battery and Related Offenses

A battery is defined in the new code as the knowing or in-
tentional touching of a person in a rude, insolent, or angry man-
ner.®^ The only change from the prior law is the substitution of
"knowingly or intentionally" for the word "unlawfully."*^ Since
intent may be inferred from rude, insolent, or angry conduct, this
change may not be of any real substance, but the new emphasis
on intent may tend to make proof of some batteries more difficult.

^'IND. Const, art. 1, § 16.

^°See Kerr, Criminal Law and Procedure, 19 7A Survey of Recent Develop-
ments in Indiana Law, 8 Ind. L. Rev. 137, 167-68 (1974).

^^See W. LaFave & A. Scott, Criminal Law 594-95 (1972). See also
Minardo v. State, 204 Ind. 422, 183 N.E. 548 (1932).

s^lND. Code §35-42-2-1 (Burns Supp. 1976).
«3/d. §35-1-54-4 (Burns 1975) (repealed effective July 1, 1977).



1976] SURVEY—FOREWORD 17

A significant change has been made in the name of the offense,
however, because the offense is simply and properly called a**bat-
tery" whereas the offense was designated as an "assault and bat-
tery" in the previous statute/'' The prior usage was a continual
source of confusion because of the difficulty in distinguishing

between an "assault'* and an "assault and battery." The defini-
tional distinction between the two offenses was clear, but the
almost interchangeable usage of the word "assault" with refer-
ence to both offenses often made it difficult to know which offense
was actually being discussed or considered. Although both terms
will undoubtedly still be used for many years, this change should
tend to reduce the usage and the resulting confusion. Furthermore,
the new code purports to eliminate the offense of "assault" as a
distinct offense, and this should eventually help to end the con-
fusion of terminology.

Under the prior law, an assault was a specific offense involv-
ing an attempt, with present ability, to commit a violent injury
upon a person." No offense of assault is included in the new code,
and the Study Commission's commentary suggests that an assault
should be prosecuted under the general attempt statute as an at-
tempt to commit a battery.®^ Despite this suggestion, the Study
Commission recommended that the legislature create a new of-
fense to be designated "reckless conduct." Under this recommended
provision, a person would be guilty of reckless conduct if he

"recklessly performs any act" that would create a substantial risk

of bodily injury to another person.^^ To a limited extent, this of-
fense was similar to the former offense of assault except that
recklessness was required in the creation of the threat of harm.
When the legislature enacted the provision, however, it inserted
the words "knowingly or intentionally" and thus virtually re-
enacted an offense of assault except under a different name.

Under this provision, a person who "recklessly, knowingly, or in-
tentionally performs an act that creates a substantial risk of bodily

injury to another person" commits the offense of recklessness.®*

Since "bodily injury" is defined to mean "any impairment of
physical condition, including physical pain,"*' the new offense
appears to be the equivalent of the prior assault offense which in-

volved an attempt to commit a violent injury upon another person.

^^Id. §35-13-4-7 (Burns 1975) (repealed effective July 1, 1977).

®*^See the Study Commission's commentary following the definition of

battery, Penal Code: Proposed Final Draft, supra note 5, Comments at 84.
^='Penal Code: Proposed Final Draft, supra note 5, at 84.
8«lND. Code §35-42-2-2 (Burns Supp. 1976).
«'/d. §35-41-1-2.



18 INDIANA LAW REVIEW [Vol. 10:1

In addition to these two basic offenses, the new code provides
for increased penalties under various circumstances such as when
the battery or recklessness results in serious bodily injury or is

committed with a deadly weapon. These provisions should be

amended, however, because there does not appear to be any cor-
relation between the classifications for battery and for reckless-
ness. For example, recklessness (which is defined to include
knowing and intentional conduct) resulting in serious bodily in-
jury is only a Class D felony whereas a battery resulting in
serious bodily injury is a Class C felony.

3. Kidnapping and Confinement

Kidnapping has been a basic offense in Indiana through the

years, but false imprisonment has not been recognized as an of-
fense. The kidnapping statute did include a provision, however,
making it an offense to imprison a person with the intent to have
such person carried away.'° In order to include false imprison-

ment as an offense, the Study Commission recommended that the
term "kidnapping" be dropped and that a new offense of "unlaw-
ful confinement" be created to include both kidnapping and false

imprisonment.'^ In its proposal, the commission included the

recommendation that the offense include lack of consent as an

element. The commission also made the controversial recommenda-
tion that there be four classes of the offense, ranging from a Class
A felony to a Class D felony. In so doing, it recommended that
the standard term of imprisonment for kidnapping be lowered

from life imprisonment to a term of two to four years. It then
recommended that the x>enalty be increased because of aggravating
circumstances such as the use of a deadly weapon or the hijack-
ing of a vehicle.

The commission's recommendation concerning the penalties
was accepted by the legislature, but the legislature did not agree
to drop the use of the term "kidnapping." As a result, the com-
mission's recommendation was divided into two parts and the
legislature enacted two separate offenses designated as "kid-
napping"'^ and "confinement."'^ In so doing, the legislature dras-

tically limited the scope of the kidnapping offense, including in it

only the most aggravated forms of kidnapping such as kidnapping

for ransom, kidnapping during a hijacking, or holding a person

as a hostage. This was designated as a Class A felony, thereby

9°/d. §35-1-55-1 (Burns 1975) (repealed effective July 1, 1977).
"Penal Code: Proposed Final Draft, supra iiote 5, at 86.
92IND. Code §35-42-3-2 (Burns Supp. 1976).

"/d. § 35-42-3-3.



1976] SURVEY—FOREWORD 10

changing the penalty from a term of life imprisonment (or even
a death sentence with reference to a kidnapping for ransom'^)
to a fixed term of from twenty to fifty years. All other forms of
kidnapping were included in the offense of ''confinement" which
was divided into three classes, ranging from a Class D felony to a
Class B felony, depending on the existence of aggravating cir-
cumstances. For example, a person who ''removes another person,
by force or threat of force, from one place to another" commits
a Class D felony.'^ This is punishable only by a term of imprison-
ment for a period of from two to four years. On the other hand,
if a deadly weapon is used as the force or threat of force, the of-
fense is a Class B felony. This is punishable by a term of from
six to twenty years. In revising the commission's recommendation,

the legislature also made one other major change. As enacted, lack
of consent is an element of confinement when a victim is simply
confined or falsely imprisoned, but lack of consent is not an ele-
ment of confinement with reference to the moving of a victim
from one place to another or of the newly defined offense of kid-
napping.

4. Rape

The most obvious change in the provision concerning rape is
that it now permits either a man or a woman to be convicted of
rape.'* A much more significant change, however, is the lowering
of the penalty for rape from a fixed term of two to twenty-one
years to a fixed term of two to eight years except when force is
used that creates a substantial risk of serious bodily injury. In

that case, the penalty is a fixed term of from six to twenty years.
Statutory rape has also been removed from the provisions con-
cerning rape and is now included in the "child molesting" offense.

5. Unlawful Deviate Conduct

One of the more controversial changes in the new code is the
elimination of sodomy as a crime when committed by consenting

adults. The term "sodomy" is dropped from the code which pro-

vides only for an offense designated as "unlawful deviate con-

duct."'^ This offense is essentially the same as the prior offense

of sodomy except for the element of consent.'"

'Vd. §35-1-55-3 (Burns 1976) (repealed effective July 1, 1977).

«/d. §35-42-3-3. (Burns Supp. 1976).

''/d. §35-42-4-1.

''/d. § 35-42-4-2.

'»/d. §35-1-89-1 (Bums 1975) (repealed effective July 1, 1977).



20 INDIANA LAW REVIEW [Vol. 10:1

6. Child Molesting

Three distinct offenses are grouped together under the child
molesting offense, with different penalties being prescribed

depending upon the age of the persons involved and the degree of
force involved. These include statutory rape, unlawful deviate

conduct, and lewd fondling or touching.'' With regard to all three
offenses, the legislature made a major change in the law by pro-
viding that it is a defense if the child has ever been married or
if the older person involved reasonably believed that the child was
sixteen years of age or older at the time of the act. Both defenses

were added by the legislature and were not included in the Study
Commission's recommendations. ^°°

The provision concerning lewd fondling poses an additional
issue which the Study Commission's recommendation would have

helped to resolve to some extent but which is still in the provision
as finally enacted. According to the new provision, a person
sixteen years of age or older is guilty of child molesting if he

fondles or touches a child under the age of sixteen with intent

to arouse or satisfy the sexual desires of either person. '°' If this

statute is valid, it suggests that a high school student could be

found guilty of a felony for even slightly amorous conduct when
on a date with a friend who is only days or weeks younger than
be is. This is especially true in view of the general rule that the

person under the age of consent cannot give a valid consent to

the illegal touching. '°^ Under the prior statute, the offense could
be committed on a victim who was not yet seventeen years of age,
but no age limit was specified for the offender. ^°^ The Study Com-
mission recommended that the provision be revised to make it an
offense for a person eighteen years of age or older to fondle or

touch a person under the age of sixteen. '°^ This might have helped

to resolve the question because of the age differential and the

greater likelihood that persons of those ages would not be dating

each other, but the legislature decided not to follow this recom-

mendation.

C. Offenses Against Property (Article ^3)

1. Arson and Mischief

The offense of arson has been drastically altered from the of-

''/d. §35-42-4-3 (Burns Supp. 1976).
'°°jSee Penal Code: Proposed Final Draft, supra note 5, at 91-92.
'<^'IND. Code § 35-42-4-3 (d) (Burns Supp. 1976).
'°^See Hamilton v. State, 237 Ind. 298, 145 N.E.2d 391 (1957).
'o^Ind. Code §35-1-54-4 (Burns 1975) (repealed effective July 1, 1977).
*°^Penal Code: Proposed Final Draff, swpra note 5, at 91.



1976] SURVEY—FOREWORD Xl

fense as it was previously defined. Under the prior law, arson
consisted of four degrees and was defined primarily as the wilful
and malicious burning of the property of another, although the
offense contained general provisions concerning the burning of

one's own property to defraud an insurer and fourth degree arson
included provisions against damaging property by explosives. '°^

The penalties ranged from a term of imprisonment for five to
twenty years to a term of one to five years, depending on the
degi'ee of the offense.

Under the new code, arson has been almost completely re-
defined to be the knowing or intentional damaging of property by
fire or explosive. '°* The property may be the dwelling of another
person which is damaged without his consent, the property of any
person if human life is endangered, or the property of another
person if the loss is at least twenty thousand dollars. "Property"

is defined to mean anything of value and is not limited to real
estate. '°^ The penalty for this offense is a fixed term of two to
eight years, except that it is raised to a term of six to twenty years
if bodily injury actually results. Additional penalties are imposed

if the offense is committed by a person for hire. Finally, arson is
defined to include the offense of detonating an explosive with
intent to injure a person as well as to damage property, although
the penalties for the two offenses are the same.

The new offense of mischief is a lesser offense to cover other
instances of damage to the property of another person, whether
by trespass or other injury. '°° Again, with reference to this of-

fense, property is defined to include anything of value. As re-
defined, these offenses do simplify and replace a number of sep-
arate statutes, '°' but the legislature should reconsider the penalties

that have been prescribed for the various types of arson.

2. Burglary and Trespass

Burglary has also been drastically revised in the new code
and is simply the entering of the building of another with an in-

tent to commit a felony. The penalty is imprisonment for two to
four years, but the penalty is raised to two to eight years if a
deadly weapon is used or to six to twenty years if bodily injury
is inflicted. "° As redefined, the offense omits the traditional re-

i°^lND. Code §§ 85-16-1-1 to -8 (Burns 1975) (repealed effective July 1,
1977).

'«*7d. § 35-43-1-1 (Burns Supp. 1976)
'°Ud. § 35-41-1-2.

'°*/d. § 35-43-1-2.

'°'5ee Penal Code: Proposed Final Draft, supra note 5, at 93-94.
"°IND. Code §35-43-2-1 (Bums Supp. 1976).



^ INDIANA LAW REVIEW [Vol. 10:1

quirement of a breaking along with the entering, eliminates Indi-
ana's special provision which makes a person guilty of burglary if
he enters a dwelling with intent to inflict even a minor injury
upon a person therein, makes no distinction between a dwelling
and other buildings, and substantially lowers some of the penalties
for the offense."' The legislature should give serious consideration
to restoring the distinction concerning dwellings and to increasing
some of the penalties prescribed for this offense.

Trespass is defined to include a number of offenses relating
to proi>erty, including both real estate and other property."^ Burg-
lary, as newly defined, is limited to buildings and similar struc-
tures and therefore entries into vehicles are now included only
within the offense of trespass.

3. Robbery

Although robbery is defined somewhat differently in the new
code, the offense does not appear to be substantially changed.

As redefined, it is the knowing or intentional taking of property
from the presence of another person by force or threats of force. "^

The words "knowingly or intentionally" have been added, but the
requisite intent probably can be inferred from the use of force or
the threat of force. The word "property" is used instead of "article
of value," but "property" is defined to mean "anything of value."
Although it might have been better for the new definition to
state "from the person or presence of another," the use of the
term "from the presence of another person" probably includes
from the "person of another" and is an improvement over the
former statute which merely stated "from the person of an-
other."'"* Finally, the use of the term "force or by threatening the
use of force" in place of the term "by violence or by putting in

fear" eliminates the question concerning the amount of proof nec-
essary to show that the victim was actually put in fear during the
robbery.

Once again, however, the legislature should reconsider the

penalties prescribed for this serious offense. The basic penalty has

been reduced from a period of imprisonment for a term of ten to

twenty-five years to a period of only two to four years. Additional

penalties are prescribed in the new code, based on the existence

"^See id. §35-13-4-4 (Burns 1975) (repealed effective July 1, 1977).

"^/d. §35-43-2-2 (Burns Supp. 1976).

"3/d. §35-43-3-1.

"^/d. § 35-13-4-6 (Burns 1975) (repealed effective July 1, 1977). See also

id. § 35-13-6-1.



1»76] SURVEY—FOREWORD »

of ag^avating circumstances, but the highest penalty allowed is
still only a period of six to twenty years as compared with a
possible term of life imprisonment under the prior law. As a
final note, robbery is included in the group of offenses related to

property, but the gist of this offense is directed more towards
the victim than to the property taken and therefore this offense

should more properly be grouped with the offenses against the
person.

4. Theft and Conversion

In 1963, the Indiana General Assembly enacted a new statute
entitled the "Offenses Against Property Act""^ which was in-
tended to consolidate a number of offenses related to theft and to
"eliminate pointless procedural obstacles to the conviction of

thieves and swindlers.""* Although the new statute did help to
simplify some of the difficulties in this area, the statute itself
posed new difficulties, especially the provision defining theft,
which was somewhat cumbersome and difficult to follow. Thus
the Study Commission decided to redraft the provision in an at-
tempt to simplify the offense of theft even further."^ In its ver-

sion, a person commits theft "when he knowingly exerts un-
authorized control over property of the owner with the intent to
deprive the owner of the property."" ° The commission then in-
cluded a series of permissible inferences and definitions related

to the offense. In addition, the commission recommended the
creation of a new offense to be called "criminal conversion" which
would be a lesser offense of theft."'

These recommendations were substantially altered by the
legislature which reverted to the former cumbersome style for
defining the offenses. In the enacted version, the provision de-

fining the offense of theft again includes a number of parts that
the commission had moved to the definitions section. '^° The legis-
lature did enact the new offense of conversion but also used the
same style that was used for the theft offense. '^^ Furthermore, the
commission's section concerning permissible inferences was re-
vised and replaced by a section providing that certain specified
types of evidence would be considered prima facie evidence of

various facts.

"Vd §§35-17-5-1 to -14.
~

''''Id. §39-17-5-2.

''^Penal Code: Proposed Final Draft, supra note 5, at 96-100.
"«/d. at 96.

'">Id. at 97.

'=°IND. Code §35-43-4-2 (Burns Supp. 1976).
'^'Id. § 35-43-4-3.



24 INDIANA LAW REVIEW [Vol. 10:1

In view of the difficulty involved in defining these offenses,
further amendments will undoubtedly be submitted to the General
Assembly which may modify these offenses even further before
the code becomes effective. Despite the benefits to be derived from
simplification and consolidation, the difficulties encountered in de-
fining theft may suggest the need to redivide theft into a number
of distinct offenses that may be defined more easily. At the
same time, the new offense of conversion should be reconsidered
because it does not appear to be any different from the offense
of theft despite the use of the words "under circumstances not
amounting to theft" in the definition of conversion. If conversion
is the same as theft but is included in the code as a misdemeanor
to permit the filing of petty thefts in a court of limited jurisdic-

tion, this should be acknowledged and done directly instead of
purporting to create a different offense which in fact is not
different.

5. Forgery

Indiana's previous forgery statute is one of the best examples

of a statute that needed to be rewritten and simplified. For what-
ever reason, the statute included an exhaustive list of items sub-
ject to forgery and this tended to make the elements of the of-
fense somewhat obscure. '^^ The new code simplifies the offense by
eliminating the list of items and emphasizes the nature or manner
in which a writing is made or altered.^" The offense is simplified
to such an extent, however, that it would probably take a some-

what extended study to determine if the scope of the offense has
been narrowed. Despite the extensive revision of this statute, one

appropriate change was unfortunately left for later action by the
legislature. The offense of forgery, as previously defined and as
defined under the new code, in fact consists of two distinct and
independent offenses, making and uttering a forged instrument.'**
For. purposes of clarity, the forgery statute should be divided into

two parts defining each of these offenses separately.

D. Other Offenses

1, Bribery and Official Misconduct

A witness who solicits or accepts a bribe with reference to
his appearance or testimony in an official proceeding is now sub-
ject to prosecution for bribery as well as the person who offers or

'"/d. §35-1-124-1 (Burns 1975) (repealed effective July 1, 1977).

'"/d. §35-43-5-2 (Burns Supp. 1976).

'^^See Sanford v. State, 255 Ind. 542, 265 N.E.2d 701 (1971).



1976] SURVEY—FOREWORD 26

gives the bribe.'" Official misconduct is defined to cover knowing
or intentional actions of a public servant that are unlawful, such

as soliciting a "kickback" from an employee, ''" but the provision
does not specifically include what previously was known as the
"ghost employees" offense.'^'' Even if included under official mis-
conduct, the new offense is only a misdemeanor whereas the for-
mer offense was a felony. Although the offense probably could
be prosecuted as theft under the provision relating to control of

property "in a manner or to an extent other than that to which
the other person has consented,"'^" the former statute should be

reenacted because it is much more specific and includes a civil
remedy for the recovery of unearned salary pajonents.

2. Perjury

Perjury is defined as the making of a "false, material state-
ment under oath or affirmation, before a person authorized by
law to administer oaths, knowing the statement to be false or
not believing it to be true."'^' As drafted, the provision combines
two prior statutes that dealt with false statements made under a
required oath or affirmation

'^° and false statements voluntarily

made under oath or affirmation.'^' In combining the two offenses,
the legislature eliminated the provision that the oath be a require-

ment under the law. Furthermore, the new provision eliminated
two other distinctions between the offenses by requiring that the

statements be both false and material to the matter in question.

Unfortunately, the penalty was reduced from a term of imprison-
ment for a period of one to ten years to a term of two to four
years. This penalty should be reconsidered because the offense

of perjury goes to the very basis of the judicial system.

3. Assisting a Criminal

The new offense of assisting a criminal' ^^ also combines cer-
tain prior offenses, including harboring, concealing, or assisting

an offender who has committed an offense and compounding
felonies, misdemeanors, or prosecutions.'" As revised, the harbor-

'^^ND. Code § 35-44-1-1 (a) (7) (Burns Supp. 1976).
•2*/d. § 35-44-1-2.

'27/d. §§35-22-8-1 to -5 (Burns 1975) (repealed effective July 1, 1977).

'^•/d. §35-43-4-2 (Bums Supp. 1976).
'=Vd. § 35-44-2-1.

'=»o/d. §35-1-90-1 (Bums 1975) (repealed effective July 1, 1977).
'^'^/d. §35-1-90-2.

'"/d, §35-44-3-2 (Bums Supp. 1976).
'"See id. §§35-1-29-3, S6-1-91-1 to -3, and 35-1-92-1 (Burns 1975) (re^

pealed effective July 1, 1977).



26 INDIANA LAW REVIEW [Vol. 10:1

ing, concealing, and assisting offenses are extended to include
misdemeanors and the compounding offenses are changed to in-
clude the exceptions for family relationships as well as being ex-

tended to cover both felonies and misdemeanors. The new provi-
sion may, however, raise a serious question of interpretation
concerning all of the offenses because it omits any element con-
cerning the offender's knowledge. The offender must have an in-
tent to hinder the apprehension or punishment of the person as-
sisted, but there is no requirement that the offender actually know
that the other person has committed a particular crime or even
any crime. The element of knowledge was likewise not included
in the prior accessory after the fact statute, but the other statutes

involved did provide that an offender was to have knowledge of
the commission of a crime although not necessarily the particular

crime actually committed.

^. Disorderly Conduct

As redefined, disorderly conduct has been expanded sub-
stantially by the elimination of the requirement that a neighbor-
hood or family be disturbed. ^^^ Four types of conduct are speci-
fied, and the first two are almost certain to invite litigation.
The first includes the language "tumultuous and violent conduct"
and the second refers to ^'unreasonable noise." Since no guide-

lines are included with reference to these terms, they may be
subject to the challenge that they are too vague.

5. Bigamy

Bigamy has been redefined to make doubly certain that a
person can remarry in good faith without later being concerned

with a bigamy prosecution. The previous statute made no reference
to good faith as a defense, but the defense was recognized by the
Indiana appellate courts.'" As revised by the legislature, the new
statute provides that one element of bigamy is knowledge that the
spouse is alive and that it is a defense that the accused person

reasonably believed that he was eligible to remarry.' '*

6. Contributing to the Delinquency of a Minor

Although the Study Commission's comment concerning con-

^^^Compare id. § 35-45-1-3 (Burns Supp. 1976) with id. § 35-27-2-1 (Burns

1975) (repealed effective July 1, 1977).
i"/d. § 35-1-81-1 (Burns 1975) (repealed effective July 1, 1977) ; Leseuer

V. State, 176 Ind. 448, 95 N.E. 239 (1911) ; Squire v. State, 46 Ind. 469 (1874).

'"iND. Code §35-46-1-2 (Burns Supp. 1976).



iy76] SURVEY—FOREWORD 27

tributing to the delinquency of a minor suggests that the revised
version is based upon present law,'^' the new version appears to
make a substantial change in the present law. The new code
provides that the offense is committed when a person eighteen
years of age or older "causes" a person under the age of eighteen

years to commit an act of delinquency.'^® Under the prior act, it
was sufficient if the offender "caused" or "encouraged" the minor
to commit an act of delinquency.'^' This was interpreted to mean
that the minor did not in fact have to commit the act for the
offender to be guilty of the offense. "'^ Acts of "encouragement"

may be covered by the general attempt statute, but only in a
limited way.

7. Controlled Substances

One complete article (article 48) of the code is devoted to
controlled substances, and the article contains essentially a re-
enactment of the existing law in this area."*' It should be noted

that the possession of a small amount of marijuana or hashish is
a misdemeanor for the first offense under the code.'^'

E, Sentencing (Article 50)

Two of the most basic changes in the new code are included
in the last article, which contains the sentencing provisions. As
provided in this article, sentences will now be imposed by judges
instead of juries and sentences of imprisonment will be for a

determinate instead of an indeterminate period of time. This

article, which also includes a number of other changes, proved
to be the most controversial part of the new code as evidenced
by the substantial differences between the version proposed by
the Study Commission and the article as it was finally enacted.

1, Sentencing Authority

The new code makes a substantial improvement in the existing
law and eliminates a considerable amount of confusion by simply
providing that the "court shall sentence a person convicted of

an offense." '^^ Under the prior law, juries and judges were
both involved in the sentencing process and it was somewhat dif-

'^^Penal Code: Proposed Final Draft, supra note 5, at 139.
•3^lND. Code §35-46-1-8 (Burns Supp. 1976).
'"/d. §35-14-1-1 (Burns 1975) (repealed effective July 1, 1977). See

also id. § 31-5-4-2.1.

''*°Montgomery v. State, 115 Ind. App. 189, 57 N.E.2d 943 (1944).
'^'Compare Ind, Code §35-48-1-1 (Burns Supp. 1976) ttnth id. §35-24.1-

4.1-1 (Burns 1975) (repealed effective July 1, 1977).
'*nd. §35-48-4-11 (Bums Supp. 1976).
'^Ud. §35-60-1-1.



28 INDIANA LAW REVIEW [Vol. 10:1

ficult to ascertain the respective role of each. As a general rule,
juries decided the sentences for misdemeanors and for murder
and treason and judges imposed sentences with reference to other
offenses.''*'* Despite this general rule, however, juries were also
authorized to determine an appropriate fine in all cases and
the judge's role was generally limited to imposing the legislatively
prescribed indeterminate sentence of imprisonment or granting
probation in appropriate cases.''** Furthermore, juries were au-
thorized to decide the appropriate sentence of imprisonment for
the commission of a crime while armed with a deadly weapon'^*
whereas judges were authorized to decide the appropriate term
of imprisonment for a bank robbery and were not limited by a
legislatively determined period of time.'^''

2. Determinate Sentencing

Both the Study Commission and the General Assembly
agreed that Indiana's indeterminate sentencing procedures should

be eliminated,"*" but the General Assembly virtually rejected the
commission's recommendation concerning the sentencing pro-

cedures to be adopted. The commission recommended that a term
of life imprisonment be imposed for Class A felonies and that the
judge be authorized to impose a fixed or determinate sentence of

imprisonment in other cases within certain ranges, depending on

the classification of the offense. For example, the judge could im-
pose a fixed term of from one to thirty years for a Class B felony,
from one to twenty years for a Class C felony, and from one to ten
years for a Class D felony.'^' This recommendation, unfortunately,
was open to the objection that it gave the judge too much uncon-
trolled discretion and that the penalties for various offenses could
in effect be raised or lowered substantially, depending on the in-

dividual judge's i)oint of view. Furthermore, the provision would

^^*See id. §§35-8-2-1 to -3 (Burns 1975) (repealed effective July 1,

1977).

'^^See Hollars v. State, 259 Ind. 229, 286 N.E.2d 166 (1972).
1^'lND. Code §35-12-1-1 (Burns 1975) (repealed effective July 1, 1977).
i^^/d. § 35-13-5-1.

^^^See id. §§ 35-8-2-1 to -3. Although the prior law generally provided

for indeterminate sentences, various statutes did authorize determinate

sentences for specific offenses, including the following: interfering with pub-

lic officials (id. §35-1-77-1); riots (id, §§35-1-77-^ to -11); commission of

felony while armed (id, § 35-12-1-1) ; involuntary manslaughter by motor
vehicle {id. 35-13-4-2) ; bank robbery (id. § 35-13-5-1) ; escape (id. §§ 35-21-

2-1, 35-21-5-1, 35-21-6-1, 35-21-7-1, 35-21-8-1); trafficking with an inmate

(id. §35-21-12-3); and handgun violations (id. §§ 35-23-4.1-18 (b) and (c))

(all repealed effective July 1, 1977).

'-'Penal Code: Proposed Final Draft, supra note 6, at 184.



ldT6] SURVEY—FOREWORD 29

tend to permit or even encourage nonuniformity in sentences de-
spite the apparent effort of the commission to promote uniform-
ity through the classification system. As a result, the General
Assembly adopted a different procedure for the imposition of
sentences although agreeing to make such sentences determinate.
Under the code as enacted, life sentences were eliminated and
judges were authorized to impose fixed terms for all offenses
within certain ranges, but the judge's discretion with regard to

these ranges was severely restricted. For example, the judge is
authorized to impose a two year term for a Class D felony but
may add up to an additional two years because of aggravating
circumstances. '^° A term of five years is prescribed for a Class
C felony, but the judge may add up to three years because of
aggravating circumstances or may subtract up to three years be-
cause of mitigating circumstances.'^' Likewise, a term of ten years
is prescribed for a Class B felony with provisions for an additional
ten years or the subtraction of four years, depending on the cir-
cumstances.'" Unfortunately, the penalty for Class A felonies
does not follow this pattern and should be amended in the interest
of uniformity and clarity. The code merely provides for a penalty
of from twenty to fifty years for Class A felonies. '^^ The General
Assembly was not satisfied with only these restrictions, however,
and therefore added a section to the procedural law by which
judges are also required to make a record of their reasons for
imposing a particular sentence.'*^ Such a requirement would
appear to be appropriate when the judge deviates from the legisla-
tively prescribed sentence, either by increasing or by decreasing
the term of imprisonment, but the provision appears to be inap-
propriate if the judge adopts what the legislature has prescribed.
The requirement would probably be satisfied, however, if the judge
simply states that he is imposing the prescribed sentence because

of the absence of any aggravating or mitigating circumstances.

3. Definition of Offences

Indiana's prior criminal code began with the clear and direct

statement that all crimes and offenses are to be divided into two
categories, felonies and misdemeanors. A felony is defined as a
crime or offense which may be punished by death or imprison-

'^^IND. Code §35-50-2-7 (Burns Supp. 1976).
'^'Id. §35-50-2-6.

'"/d § 35-50-2-5.
'5=/d. §35-50-2-4.

'^-Pub. L. No. 148, § 14, 1976 Ind. Acts 718 has been compiled in Bums'
Indiana Code as § 35-8-1A-3 (Burns Supp. 1976), but designated as §35-4.1-
4-3 in the official Indiana Code.



30 INDIANA LAW REVIEW [Vol. 10:1

ment in the state prison and a misdemeanor is defined as any
other offense. '^^ The Study Commission also included a basic
definitional section near the beginning of its proposed code, but

the commission recommended a distinct change from the existing
law. As recommended, the term "offense" was the basis for the
reclassification and was defined as including "crimes" and "in-
fractions," a new category of offenses. Crimes were divided into
felonies and misdemeanors, depending on the length of imprison-
ment instead of the place of confinement. Infractions were not
subdivided further but were defined to include offenses as de-

fined by city ordinances, any offense specifically designated as
an infraction by the legislature, or any offense for which the
legislature did not prescribe a term of imprisonment.'" This

recommendation was apparently accepted by the General Assembly,
but unfortunately the commission's definitional section was omit-
ted from the code. Thus the new code does not contain any defini-
tional section equivalent to the provision that was placed at the
beginning of the former code. The new code clearly reflects the
new classifications, however, such as in the sentencing article
which contains provisions concerning felonies, misdemeanors, and
infractions, but it includes only a short definition of "offenses"

which is found in the middle of the lengthy definitions section at

the beginning of the code and a definition of "felonies" which is
included in the sentencing article. In the former, an "offense"

is defined simply to mean "a felony, a misdemeanor, or an infrac-
tion."'^' The sentencing article defines only a "felony conviction"
and provides that this includes "a conviction, in any jurisdiction,

with respect to which the person could have been imprisoned for

more than one (1) year."'" Since misdemeanors and infractions
are not expressly defined in the code, their definitions must be
drawn from a review of the penalties authorized for such offenses.
As would be expected, a misdemeanor is thus defined as an offense
punishable by imprisonment for not more than one year.'^' Like-
wisie, an infraction is an offense punishable only by a fine of not

more than five hundred dollars.
'*°

The new classifications concerning felonies and misdemeanors
conform to the present classifications in the federal system,''"' but

the new category of infractions has no similar counterpart under

'"IND. Code §35-1-1-1 (Bums 1975) (repealed effective July 1, 1977).
'^^PENAL Code: Proposed Final Draft, supra note 5, at 8-9.

'*7iND. Code §35-41-1-2 (Burns Supp. 1976).
'*fi/d. § 35-50-2-1.

'59/d. §35-50-3-2.

'*°/d. §35-50-4-2.

'^'iSec 18 U.S.C. §1 (1970).



1976] SURVEY—FOREWORD 81

the federal law. Two infractions are included in the new Indiana
code, provocation to commit a battery'" and harboring a non-
immunized dog,'*^ but the term will undoubtedly be applied to
many other offenses that are defined in provisions outside the
new code. In fact, it might be more appropriate to remove the
two infractions from the code and reserve the use of the term for
offenses found outside the code. As a final note, the limit of a
five hundred dollar fine for infractions should be reconsidered,
and the legislature should increase the maximum amount and
establish a range of infractions similar to that for felonies and
misdemeanors.

4' Habitual Offenders

Under Indiana's existing law, a person who has been con-
victed of three felonies may be subject to imprisonment for life
as a habitual offender.'^'* The Study Commission recommended
that these provisions be retained but in a somewhat modified
form. For example, the commission recommended that the life
term be changed to a term of not more than thirty years.'" In-
stead of following the commission's recommendations, however,

the General Assembly decided to provide enhanced penalties for
any person convicted of a third felony. The provisions concerning
the penalties for each felony classification were thus revised to
include such enhanced penalties,'" and the provisions concerning
habitual offenders were omitted from the code. This change might
not have any substantial impact on the ultimate time that a person
would be required to serve in prison since the code still authorizes

a lengthy period of imprisonment in such cases, but the new ap-
proach does raise serious procedural questions. Because of the

danger of prejudice to a defendant, Indiana has developed spe-

cialized procedures for habitual offender prosecutions, including a

two-stage trial. "^ Such procedures may likewise be required with
reference to enhanced penalties based on prior convictions, ""^ and

the legislature should clarify the question by reconsidering the

commission's recommendations concerning habitual offenders or

by adding appropriate provisions to the penalty sections.

'"IND. Code §35-42-2-3 (Burns Supp. 1976).

'"/d. §35-46-3-1.

'*^7d. §§35-8-8-1 and 2 (Burns 1975) (repealed effective July 1, 1977).

'**Penal Code: Proposed Final Draft, supra note 5, at 185-87.

'**IND. Code §§35-50-2-4 to -7 (Burns Supp. 1976).

'^'Lawrence v. State, 259 Ind. 306, 286 N.E.2d 830 (1972).

"°See United States v. Tucker, 404 U.S. 443 (1972); Lewis v. State,

337 N.E.2d 616 (Ind. Ct. App. 1975).



a2 INDIANA LAW REVIEW [Vol. 10:1

5. Concurrent Sentencing

Indiana has generally followed a system of imposing con-
current sentences when a person has been convicted of two or
more offenses, subject to certain specified exceptions.' *' The new
code continues this system but modifies the existing law by pro-
viding that consecutive terms may be imposed for a failure to
appear and for any crime committed during an escape. The code
also omits the prior provision for consecutive sentences for the

commission of a felony while armed. '^° In addition, the code pur-

ports to authorize consecutive sentences for any crime committed
while a person is in prison, but the code will need to be amended
before becoming effective because it appears inadvertently to have
omitted the time at which a term of imprisonment for such an
offense is to begin.

6. Probation

Under the code, a judge is authorized to suspend any part of
a sentence for a misdemeanor and to place the defendant on pro-
bation for a fixed period of not more than one year.'^' Likewise,
subject to certain exceptions, the judge may suspend any part
of a felony sentence and place the defendant on probation for a
fixed period to end not later than the expiration of the suspended

sentence.' ^^ These provisions represent a change in the prior law

which limited the period of probation to the maximum period for
which the defendant could have been sentenced or to a period

of five years, whichever was the lesser. '^^ Furthermore, the pro-
vision concerning felonies leaves no discretion to the judge but

requires the judge to place a defendant on probation if the

sentence is suspended. On the other hand, the judge is given the
discretion to suspend a sentence for a misdemeanor without plac-

ing the defendant on probation.'''^

^ *'A judge may not impose a consecutive sentence unless a specific statute
authorizes such a sentence. Baromich v. State, 252 Ind. 412, 249 N.E.2d 30

(1^9). See Ind. Code §11-2-1-1 (Burns 1973). Consecutive sentences are
authorized with reference to commission of a felony while armed [id.
§35-12-1-1 (Burns 1975) (repealed effective July 1, 1977)], handgun
violations [id. § 35-23-4.1-18 (d) (Burns 1975)], jail breaking [id. §35-21-8-1

(Bums 1975) (repealed effective July 1, 1977)], escape from prison [id.
§§ 35-1-96-9 and 35-21-6-1], commission of a crime while released on bail
[id, §35-8-7.5-1 (Burns Supp. 1976) (repealed effective July 1, 1977)], and
commission of a crime while on parole [id. § 11-1-1-11 (Burns 1973)].

^^°See id. § 35-50-1-2 (Bums Supp. 1976) and note 169 supra.
'^'IND. Code §35-50-3-1 (Bums Supp. 1976).
'72/d. §35-50^2-2.

'73IND. Code §35-7-2-2 (Bums 1975) (repealed effective July 1, 1977).
"'*A form of probation is also authorized with reference to infractions.



1976] SURVEY—FOREWORD 38

With reference to sentences for felonies that may not be
suspended, the new code reflects a number of changes from the
existing law. The present law authorizes a judge to suspend the
sentence for any felony except murder, arson, first degree bur-
glary, rape, treason, kidnapping, a second conviction of robbery,

and the commission of a felony while armed with a deadly
weapon. ''* The Study Commission recommended that probation be
authorized except for Class A felonies, habitual offender convic-
tions, and commission of a felony while armed with a deadly
weapon. ''* This recommendation was not accepted by the legisla-
ture which apparently preferred to enact a specific list of par-
ticular sentences which could not be suspended. In its list, the
legislature included murder, kidnapping, arson for hire, and other
specified offenses involving either serious bodily injury or the

use of a deadly w^eapon.'^^ This list thus enacted includes more
offenses than under the prior law, but the offenses as included

under the prior list have been substantially limited by the pro-
visions concerning serious bodily harm and use of a deadly weapon.
For example, arson and first degree burglary were on the prior
list, but the new code includes only arson for hire or arson result-
ing in serious bodily injury and burglary with a deadly weapon or
burglary resulting in serious bodily injury.

7. Parole

The last major change reflected in the new code is with
reference to parole. Accepting the recommendation of the Study
Commission, ''° the legislature provided that a person who is
imprisoned for a felony is to be released on parole upon completing

his sentence of imprisonment, less good time that has been

earned.'^' Since this release is to be automatic, the Indiana Parole

Board is to be involved in the supervision of defendants only after

they have been released on parole. The Parole Board's authority
is substantially limited, however, because the legislature also pro-

the judge being given authority to suspend the fine and costs for an infrac-

tion if the defendant does not repeat the offense for a fixed period of not
more than one year from the date of sentencing. Ind. Code § 35-50-4-1 (Bums
Supp. 1976). Provision for "shock" probation and intermittent service of
sentences were also enacted by the legislature along with the criminal code.
See Pub. L. No. 148, § 16, 1976 Ind. Acts 718, 808, compiled as § 35-8-1A-18

(Burns Supp. 1976), but designated as § S5-4.1-4-18 in the official Indiana

Code, and § 35-7-2-1 (c)

.

'^^Id. §§35-7-1-1 (Bums 1975) (amended effective July 1, 1977),
35-12-1-1, 35-13-4-3 (Burns 1975) (repealed effective July 1, 1977).

'76PENAL Code: Proposed Final Draft, supra note 5, at 192.
'77IND. Code §35-50-2-2 (Burns Supp. 1976).
''"Penal Code: Proposed Final Draft, supra note 5, at 188.
'^'Ind. Code §35-50-6-1 (Bums Supp. 1976).



34 INDIANA LAW REVIEW [Vol. 10:1

vided that a parolee is to be discharged not more than one year
after the date of his release on parole unless his parole has been
revoked within that one year period of time. In this regard, the

legislature decided not to follow the recommendation of the Study
Commission which had proposed a period of parole until the ex-
piration of the person's specified sentence or for a period of five

years, whichever was the lesser.

F. Concliision

Five possible arguments can be made in support of the
revision and codification of Indiana's criminal laws, and these
are essentially of two types, those which are concerned with mat-
ters of form and those which are concerned with matters of sub-
stance. For example, it can be argued that there has been a need
to organize all of the laws relating to criminal conduct into one

volume or one set of volumes in order to simplify research and
bookwork for those involved in the field of criminal law or those
interested in finding certain information relating to criminal law.

Furthermore, since the state's criminal laws have been developed
over a lengthy period of time, there has also been a need to review
the laws in order to eliminate those statutes which were duplica-
tions, those which have been repealed or declared unconstitutional,
and those which have become obsolete because of the passage of
time. These arguments are concerned primarily with matters of

form and certainly involve worthwhile objectives. On the other
hand, it can be argued that certain basic changes have been needed

in the Indiana criminal justice system and that these changes

could be made only by a complete revision and codification of
the state's criminal laws. Furthermore, there has been a need to

clarify laws that were confusing or laws that appeared to be in-

consistent, especially when the laws were enacted at different
periods of time without any apparent effort to ensure that the

provisions were consistent or would fit together into a coordinated

system. Finally, it can be argued that the state's criminal laws

have contained certain gaps or voids because of the uncoordinated

manner in which the laws have been enacted and that the re-
vision and codification process was necessary in order to identify
the gaps or voids to be filled by the legislature.

Despite the importance of each of these arguments, there are

substantial arguments that can be made against the new code.
First, it can be argued that the new code still contains a number
of problems and unanswered questions, as shown by this review,
and the very scope of the undertaking almost ensures that there

are other undetermined difficulties and issues in the code that



1976] SURVEY—FOREWORD 36

continue to exist because of the lack of time to study and review
each item in the necessary detail. Secondly, it can be argued that

the enactment of the new code will create an uncertainty concerning
all of the criminal laws when it finally becomes effective. Further-
more, the uncertainty will cause confusion in the courts and will
tend to encourage an increasing number of appeals in criminal

cases or at least increase the number of issues being raised in
criminal appeals. Finally, the revision and enactment of a con-

troversial code of this nature must have required a certain amount

of compromise, and therefore it is probable that no one is com-

pletely satisfied with the end product. Thus it can be argued that

each statute should have been reviewed and submitted to the

legislature individually to ensure proper consideration and re-

view by all persons concerned and to avoid the necessity for such

compromises.

The arguments opposing revision and codification are sub-

stantial and somewhat difficult to refute, and therefore the

ultimate verdict on the new code must be based on the relative
merits of the code and the manner in which it meets or satisfies the

objective of its proponents. The new code is clearly a step in
the right direction to the extent that it reorganizes the state's

criminal laws and places them together in one volume, but the

code is far from complete and many criminal laws still remain out-
side the code in an unorganized fashion. For example, the Study

Commission included recommended provisions concerning abor-

tion' °° and firearms' °' in its proposed code, but the legislature

omitted these provisions from the new code and allowed these
subjects to be covered as they had been by the existing statutes.'®'

Furthermore, the Study Commission also decided to omit certain

subjects from its review, such as obscenity, traffic offenses, ad-

ministrative crimes, and juvenile matters. Obscenity is a subject

that should properly be included in the criminal code but un-

doubtedly was omitted because the legislature had enacted a stat-

ute in 1975 on this subject.'" The other three topics are generally

not included in a criminal code, but they are mentioned here be-

cause it is important to realize that criminal laws are found in

many other places besides the criminal code. For example, an of-
fense of reckless homicide by use of a motor vehicle is found in

'«°Penal Code: Proposed Final Draft, supra note 5, at 116-20.

'«'/d. at 143-151.

'"See IND. Code §§35-1-58.6-1, 35-23-4.1-1 (Burns 1975).

'"/d. §§ 35-30-10.1-1, 35-30-10.6-1, 36-30-11.1-1.



36 INDIANA LAW REVIEW [Vol. 10:1

the Motor Vehicle Code'*'* and the common offense of public
intoxication is included in the Alcoholic Beverages Code.'®^

As suggested by the code's proponents, many unecessary stat-
utes have been repealed and eliminated. For example, a number
of apparently obsolete statutes have been repealed, including
offenses such as profanity,'®* obstructing a ferryboat,'®^ fortune

telling, '°° trespass by turkeys, chickens, ducks and geese,'®' and
dueling.' '° At the same time, others have been repealed, apparently
for the same reason, but there may be some dispute as to whether
they are or are not obsolete. For example, the statutes relating
to seduction,'" adultery and fornication,"^ and sodomy between
consenting adults"^ have been eliminated. Other statutes have
been properly eliminated, probably because they are unconstitu-

tional, including the statutes concerning paupers, vagrants, and
tramps."^ Finally, statutes defining offenses such as mayhem,"*
murder by dueling,"* and lynching"^ have been repealed because
they appeared to be duplications or involved offenses that appeared

to be included in other statutes.

The reorganization of the state's criminal laws and the elimi-
nation of unnecessary statutes are worthwhile objectives, but these

improvements may not necessarily have any substantial impact
on the administration of justice in the state. On the other hand,
the new code does contain a number of basic changes that should
make a substantial impact on the state's criminal justice system.
In fact, the primary value of the revision and classification process

is reflected in these basic changes which include the organization

of offenses into certain basic categories, the classification of

offenses according to the seriousness of each offense, the elimina-

tion of indeterminate sentences, and the elimination of juries from
the sentencing process. In addition, the new code does include a
number of worthwhile clarifications such as the provisions con-
cerning culpability and the elimination of the distinction between

^^*Id, 9-4-1-54 (Bums Supp. 1976).
- i8*M §7.1-6-1-3.

'»*/d. §35-1-85-1 (Burns 1975) (repealed effective July 1, 1977).
'«7/d. § 35-27-5-1.

^««/d. §35-18-7-1.

'»'/d. §35-19-1-1.

'9°/d. §35-1-53-1.

'"/d. §35-1-82-3.

'"/d § 35-1-82-2.

'937d. § 35-1-89-1.

'947cZ. §§35-1-110-1 to -3.

">^Id, §§ 35-1-54-5 and -6.

'9*/d. §§35-1-53-1 and -2.

"Vd. § 35-1-77-3.



1976] SURVEY—ADMINISTRATIVE LAW 87

first and second degree murder. Likewise, the new code does in-
clude new provisions such as the general attempt statute and the
unlawful confinement statute which were enacted to fill certain
apparent gaps or voids in the existing law.

When all of these changes and improvements are considered
together, they appear to be sufficient to outweigh the various

arguments that can be made against the new code. The code does
contain a number of difficulties, as discussed above, but many of
these can be remedied and the General Assembly has specifically
deferred the effective date of the new code to provide for ap-
propriate amendments. When these have been enacted and the
code is finally effective, the General Assembly should then con-
sider establishing an agency such as the Indiana Criminal Law
Study Commission to continue the process of review and revision
of the state's criminal laws. In this way, the state can keep its

criminal code up to date and avoid the need to recodify the code
again during the celebration of the nation's tricentennial.

II. Administrative Law

Lewis A. Shaffer*

A. Scope of Judicial Review

One of the more interesting cases in the area of administra-
tive law during the survey period was City of Evansville v. South-
ern Indiana Gas & Electric Co.^^ which may indicate a new trend
in the judicial review of administrative agency decisions in Indi-

ana. Prior to City of Evansville, Indiana courts had adopted as the
appropriate test of an agency's factual determination, whether
there was substant4al-evidenc© ijathe administrative record to sup-
port the agency's finding.^ However, many of the decisions which
had explicitly dlscussed~the~ method of determining substantiality
had stated that the only evidence to be considered was that most

*Member of the Indiana Bar. J.D., Indiana University School of Law

—

Indianapolis, 1975; B.A., State University of New York at Oneonta, 1972.
The author wishes to thank Kathryn Wunsch for her assistance in prepar-

ing this discussion.

'339 N.E.2d 562 (Ind. Ct. App. 1975).
"^See, e.g., Boone Co. Rural Elec. Membership Corp. v. Public Serv.

Comm'n, 239 Ind. 525, 159 N.E.2d 121 (1959) ; Knox Co. Rural Elect. Member-
ship Corp. V. Public Serv. Co., 139 Ind. App. 547, 213 N.E.2d 714 (1%6)

;

Pennsylvania R.R. v. Town Bd. of Trustees, 139 Ind. App. 216, 218 N.E.2d
171 (1966); City of Terre Haute v. Terre Haute Water Works Corp., 133
Ind. App. 232, 180 N.E.2d 110 (1962).