Robinson v. State

311 N.E.2d 461 (1974)

Thelma ROBINSON, Appellant, v. STATE of Indiana, Appellee.

No. 2-1072A80.

Court of Appeals of Indiana, Second District.

May 21, 1974.

*462 Dennis E. Zahn, Symmes, Fleming, Ober & Symmes, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

WHITE, Judge.

The appellee, the State of Indiana, has filed a petition for rehearing which alleges that our opinion handed down April 15, 1974, 309 N.E.2d 833, held that the trial court erred in refusing to give defendant's Instruction No. 2 and in refusing to give her Instruction No. 3.

We did not hold that it was error for the trial court to refuse defendant's tendered Instruction No. 3. However, a mistake in our opinion, for which this writer is fully responsible, may have led the State to believe that we did. Hoping to avoid further confusion, we write this opinion to correct that mistake. On page 854 of the opinion we spoke of the trial court having refused appellant's request "for an instruction which had been approved by the Supreme Court in the Miller case [Miller v. State, 223 Ind. 50, 58 N.E.2d 114]." We should have said "in the Porter case [Porter v. State, 173 Ind. 694, 91 N.E. 340]." The Porter case approved an instruction substantially identical to defendant's Instruction No. 2 and the Miller case approved defendant's Instruction No. 3, the applicability of which our opinion expressly doubted because it mandated a not guilty verdict.

The arguments the State makes in support of its petition for rehearing are but a repetition of contentions we expressly rejected in our initial opinion. We still find them unpersuasive. Our decision remains that which we expressed in the last sentence of our initial opinion: "As already noted, it is for the error in refusing to read to the jury defendant's tendered Instruction No. 2 that we reverse the trial court judgment with directions to grant the appellant a new trial to be conducted in conformity with the views expressed herein."

The petition for rehearing is denied.

SULLIVAN, P.J., and BUCHANAN, J., concur.