Indiana State Highway Commission v. Vanderbur

434 N.E.2d 575, 1982 Ind. App. LEXIS 1162

Opinion

ON PETITION FOR REHEARING

NEAL, Judge.

Each Appellee’s Petition for Rehearing raises the issue of retroactive application of Lewis v. State, (1980) Ind.App., 409 N.E.2d 1276, transfer granted 424 N.E.2d 107, and the further issue that the supplemental instruction was not in fact an “Allen charge” proscribed in Lewis, supra.

In the cases of Lewis, supra; Burnett v. State, (1981) Ind.App., 419 N.E.2d 172, transfer granted and opinion vacated Ind., 426 N.E.2d 1314; and Crowdus v. State, Ind., 431 N.E.2d 796 (1982) cases with similar procedural positions as here, all were given retroactive application.

We further observe that in Crowdus the Supreme Court disposed of the second issue. There, it stated:

“With respect to the giving of Supplemental Instruction A, we note that the ruling in Lewis is not limited to Allen [(1896) 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528] charges. Once deliberations commence, the trial court should not give any additional instructions.”

For the above reasons, the Petitions for Rehearing are overruled. Ind.App., 432 N.E.2d 418.

RATLIFF, P. J., and ROBERTSON, J., concur.