Rasberry v. State ( 1988 )

BURGESS, Justice,

dissenting.

I respectfully dissent. I dissent to urge our highest criminal court to once again consider the -question of notice to defendants in view of the statutes imposing criminal responsibility for another. In all of the currently reported cases, a defendant has been a party based upon affirmative acts. In the instant case, appellant was made a party by omission. To compound matters, that unplead omission was only culpable if appellant was of a certain status and that status was also unplead.

I believe the current case law which allows charging the jury on the law of parties without pleadings is a serious erosion of the traditional notions of notice and due process. In this case, appellant, simply because of his status, was required to guess in which manner the state was going to prove the allegations of assault. It is one thing to charge the jury in the traditional manner of parties, i.e., one who participates in an affray is certainly put on notice he will be liable for the acts of co-participants. Here, however, appellant was placed before the jury, not as an active participant in the affray, but because he was in a specialized status and refused to act. Our highest court should not expand “no notice required” to this manner of vicarious criminal responsibility. Because the majority of this court does so, I respectfully dissent.