# Murray v. State

> Indiana Supreme Court · June 28, 1985 · 479 N.E.2d 1283

URL: https://www.frixlaw.com/law-library/cases/9532445

## Case

- **Full name:** Jeffrey L. MURRAY, Appellant, v. STATE of Indiana, Appellee
- **Court:** Indiana Supreme Court
- **Decided:** June 28, 1985
- **Citations:** 479 N.E.2d 1283; 1985 Ind. LEXIS 869
- **Precedential status:** Published
- **Opinion:** Concurring in part by DeBRULER
- **Judges:** Pivarnik, Givan, Prentice, Debruler, Hunter
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9532445

## Opinion text

DeBRULER, Justice,
dissenting and concurring.
I.C. § 85-48-4-1 defining the crime of dealing in a narcotic drug provides:
"A person who:
(1) Knowingly or intentionally manufactures or delivers cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II; or
(2) Possesses, with intent to manufacture or deliver, cocaine or a narcotic drug, pure or adulterated, classified in Schedule I or II; commits dealing in cocaine or a narcotic drug, a class B felony.
Appellant was charged under the second paragraph of this statute with possession of cocaine with the intent to deliver it. For some reason undisclosed in the record, the trial court gave the jury its final instruction No. 8 which stated that appellant was charged with knowingly or intentionally delivering cocaine, the offense defined in the first paragraph of this statute. There was no similar instruction given which explained the character of the offense as *1290 initially charged. The verdict form returned showed guilty of dealing, a form consistent with a charge under paragraphs (1) or (2).
This instruction was erroneous in that it presented a charge not made, and the giving of it constituted fundamental error, an error which robbed the proceeding of required fairness. Appellant was not notified through the charge, before trial that he should defend against a charge of knowing or intentional delivery. The conviction itself is now beclouded by the distinct possibility that the jury verdict rests upon the conclusion that appellant "delivered" the drug, contrary to instruction #8, when he involuntarily surrendered the proven cocaine under threat of deadly force.
Accordingly, I would reverse the convietion for dealing in a narcotic drug and remand Count I for a new trial. However, I also vote to affirm the conviction for common nuisance pursuant to Count II.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9532445. Public record. Not legal advice.