¶1Defendant was charged in Huntington Circuit Court with the crime of first degree murder; venue of the cause was changed to Grant Circuit Court. Defendant pleaded not guilty to the charge and specially pleaded that he was of unsound mind at the time the crime was committed. The jury found the defendant guilty of first degree murder and assessed the penalty to be death.
¶2Briefly, the facts relative to the issues presented in this case are as follows. On July 27, 1968, Burl Lyles, nicknamed Joe, accompanied by a female companion, at approximately 10:30 p.m., left a softball game they had attended and proceeded to a rural road where they parked. After being parked for about ten to fifteen minutes a car pulled in behind their car. Someone from the second car yelled out the window and asked if they had seen a certain car go by. Joe Lyles responded that he had not. Observing that a headlight of the second car was unlit, Joe Lyles informed the driver of the condition. Having left his car Joe Lyles reentered his car, at which time a shot was fired from the second car, followed by a second shot. After the second shot the occupant of the second car approached Joe Lyles’ car and told the girl to get out of the car or he would kill her. The defendant then forced her to get into the trunk of the second car. He then drove from the scene of the shooting. After approximately twenty minutes the defendant parked the car and released the girl from the *66trunk. He then led her from the car and raped her. Thereafter she attempted to flee and he stabbed her in the back with a knife. He then placed her in the car and attempted to leave but discovered his car was stuck. They spent the rest of the night in the car. The following morning the defendant went to a farm and got a farmer to pull his car out, and then took the girl to the Huntington County Hospital and left her. On the morning of July 28, Joe Lyles was found dead in his car parked on the rural road where he had parked it the night before with his girl companion. The cause of Joe Lyles death was attributed to a bullet wound in the head. On July 31-, 1968, at approximately 2:00 p.m., the defendant went to the residence of Mr. and Mrs. Dennis Brown. No one was present when the defendant arrived but later Mrs. Brown returned home with her children. The defendant forced Mrs. Brown into a bedroom and raped her. Thereafter, the defendant decided that he wanted to give himself up and requested Mrs. Brown to call the police, which she did. The first police officer to go to the Brown residence was Whitley County Deputy Sheriff Harold Lewis, who took the defendant into custody. Shortly thereafter, State Police Officers Melvin Wall and William Shockley arrived. Officer Wall arrived first and handcuffed the defendant and placed him in his police car. When Officer Shockley arrived the defendant was turned over to him, whereupon Officer Shockley read a standard warning and waiver of constitutional rights form to the defendant. The defendant was taken to the Huntington County Prosecutor’s Office at approximately 3:45 p.m. at which time another alleged warning and waiver form was read to the defendant by the prosecutor in the presence of Officer Shockley. At about 6:00 p.m. the defendant was taken to the Huntington Police Station to be fingerprinted. The defendant was placed in jail overnight. The following morning at approximately 10:30 a.m., August 1, 1968, the defendant was taken before Judge Mark McIntosh, Judge of the Huntington City Court, where he was preliminarily charged with first degree *67murder. On August 5, 1968, the Huntington County Grand Jury filed an Indictment charging Charles Wayne Adams, the defendant, with first degree murder. In addition to a general plea of not guilty the defendant made a special plea of not guilty by reason of being of unsound mind at the time of the commission of the crime. The court appointed two disinterested physicians to examine the defendant.
¶3During the course of the trial, no statements or evidence obtained by use of any statements made by the defendant were introduced as evidence by the State. A .22 caliber rifle, turned over by the defendant at the time of his arrest, was introduced and admitted into evidence. State Police Officer Houck testified that two empty cartridge cases which had been found at the murder scene were fired from the rifle which the defendant turned over at the time of his arrest. In the course of her testimony the raped girl identified the defendant as the man who had fired the shots and raped her. Mrs. Brown also identified the defendant as the man who had raped her. State Police Officer Shockley testified only that he had arrested the defendant and warned him of his rights; he offered no testimony relating to any statements made by the defendant after his arrest.
¶4Appellant first urges that his constitutional rights were violated. Specifically, he urges that he was not given the warning as to his constitutional rights as required by Miranda v. Arizona (1966), 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, that he was interrogated while in custody immediately following his arrest and that he was not promptly taken before a magistrate following his arrest. The facts and the law do not support the appellant in this contention. The record clearly shows that appellant was fully informed of his constitutional rights when he was first taken into custody at the Brown home, where the second rape occurred. The evidence goes further to show that he was given another warning in the Prosecutor’s Office although the Court for some reason excluded the testimony as to that warning. *68The evidence further shows that the appellant was taken into custody at 3:45 p.m., on July 31, 1968, and was taken before the Judge of the Huntington City Court the following morning, about 10:30 a.m., and preliminarily charged with first degree murder. This time lapse does not exhibit any unnecessary or prejudicial delay.
¶5Finally, we point out that the record shows that the State did not offer into evidence any statements elicited from the appellant during interrogation, while in custody. The appellant, however, urges that although the statements were not used in evidence the inference may be drawn that the interrogation was helpful in gathering other evidence and therefore would constitute “poison fruit” resulting from such interrogation. The Miranda v. Arizona (1966), 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, and Escobedo v. Illinois (1964), 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 rules are exclusionary and have no application here. There is no record in the case that the appellant objected to any specific evidence being introduced as “poison fruit” nor is there any record showing that the appellant asked to introduce evidence as a basis for making an objection to evidence and excluding the same. We find no prejudicial error on the grounds urged by the appellant, this Court has previously stated that:
“One cannot claim error for an abstract violation of a constitutional right where he shows no injury.” Layton v. State (1968), 251 Ind. 205, 240 N. E. 2d 489, 494.
¶6The appellant next contends that the State did not prove the sanity of the defendant, and that its evidence showed only that the appellant was of unsound mind. First we note, the State was under no duty to introduce evidence of the appellant’s sanity in its case in chief, Brattain v. State (1945), 223 Ind. 489, 61 N. E. 2d 462. However, the State did introduce considerable evidence on the issue of the appellant’s sanity. Although, the State did *69not introduce the testimony of any psychiatrists, it did introduce considerable lay testimony on the issue. We have held that lay testimony on the issue of insanity is competent evidence for the trier of the fact to consider, Johnson v. State (1971), 255 Ind. 324, 264 N. E. 2d 57. The State offered the following testimony relative to the issue of the appellant’s sanity. On July 26, 1968, two days before the murder, Dennis Brown stated that he noticed nothing different about the appellant or the way in which he was conducting himself, when he talked with him on that date. Bernice Wardwell, a waitress at a restaurant, testified that she talked with the appellant about 11:00 a.m. on July 28, 1968, the morning following the murder. She testified that the appellant quietly ate his breakfast. “He was polite, said thank you” and just seemed normal. J. D. Meyers and William Lee Patrick, two fishermen, who talked with the appellant at the first rape scene, while the appellant’s car was still stuck, testified that there was nothing peculiar or out of the way about the appellant. Cyril Burns, the farmer who pulled the appellant’s car out, testified that he did not notice anything different or unusual about the appellant; he even offered to pay him for pulling him out. The girl who was raped testified that after the rape appellant was very calm and collected and seemed intelligent, that his actions were intelligent. That after the rape, he stopped to get some water for the car radiator to cool it off. That he spread sheets around the car so no one could see the blood. That on driving her to the hospital, he was calm and friendly. H. June Mishler owner of a trout fishing pay pond, testified that on July 26, 1968, two days before the murder, the appellant was fishing at his pond and caught six to eight fish. Ruth Broom, an employee of a grocery, testified that on July 27, 1968, at about 11:00 a.m., the appellant purchased a flashlight and batteries at the store, described him as just friendly, that he caused no trouble and nothing attracted her attention. Absent any expert testimony there was a considerable amount of evidence presented by the State on the *70issue of the appellant’s sanity, from which the jury could conclude that the appellant was of sound mind when he committed the murder. After the close of all the evidence, the court called the court-appointed psychiatrists to give their opinion as to whether the appellant was of sound mind when he committed the murder. Doctor Henry Alderfer, the first physician to testify stated, “. . . but I believe that perhaps that he did not have the ability to refrain from this act of murder.” The second physician to testify, Doctor Larry K. Mussleman, stated that he did not have an opinion. In the instant case there was sufficient evidence from which the jury could conclude that the appellant was of sound mind when he committed the murder and the appellant’s contention must fail.
¶7Appellant next contends that he was deprived of a fair trial by reason of the exclusion of jurors who were “peremptorily” challenged by the State because they had conscientious objections to the death penalty. It is to be noted that this is not a challenge of a juror for “cause” that was sustained by the Court. A peremptory challenge may be for no cause whatsoever, Burns § 9-1502, 1503, and 1504. We point out in addition that the appellant has failed to include in the transcript the voir dire examination of the jurors and the record does not present such question for review. We stated in Nix v. State (1960), 240 Ind. 392, 396, 166 N. E. 2d 326, 328, where the voir dire examination of witnesses was in issue: “The necessity of having before us the voir dire examination in a case of this kind is emphasized by the very nature of the question and answer presented . . Additionally, in the Nixcase we stated: “In the absence of stenographic notes of the voir dire examination the parties could have stipulated the substance of all the questions and answers of this juror taken upon the voir dire and the same could have been settled as a special bill of exceptions by agreement or by the judge.” In Witherspoon v. Illinois (1968), 391 U. S. 510, 88 S. Ct. 1770, 20 L. Ed. 776, the Supreme Court of the *71United States set forth specifically the instance when the State could challenge a juror for cause, where the juror has a conscientious objection to- the death penalty. The Court stated: “Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” (391 U. S. at 522). Thus, it can be seen why it is necessary for the transcript to include the voir dire examination of the witnesses. Without the voir dire examinations before us, it is impossible for us to determine the nature of the objection to the death penalty made by any veniremen. For the reasons stated above the question is not properly presented for review.
¶8The appellant also contends that he was denied a fair trial because the prosecutor inflamed the jury by waving a picture of the decedent before the jury and with great passion demanded the death penalty which resulted in the death penalty. For the reasons stated above, there is no record before us of such alleged acts, the appellant failed to preserve the question for review on appeal. We, however, are not impressed with the alleged error as contended.
¶9Next, the appellant contends that the insertion of the defense counsel’s name “Mr. Bangs” in general instruction number thirty-six [36], was reversible error by the trial court. In substance the instruction provided that hypothetical questions proposed by defense counsel, Mr. Bangs, relating to the issue of appellant’s sanity, were not to be taken for granted as true as to the assumed facts. The effect of the instruction would seem to be beneficial to the appellant and not prejudicial. We find no prejudicial error in the instruction as it was given.
¶10Finally, appellant contends that Bums Ind. Stat. Ann., § 10-3401, which provides as follows, is unconstitutional.
*72“Murder—First degree—Penalty.—Whoever purposely and with premediated malice, or in the perpetration of or attempt to perpetrate a rape, arson, or burglary, kills any human being, is guilty of murder in the first degree, and on conviction shall suffer death or be imprisoned in the state prison during life.” [Acts 1941, ch. 148, § 1, p. 447.]
¶11Appellant specifically contends that the “death penalty” provided for in the statute violates Article 1, §§16 and 18 of the Constitution of the State of Indiana. First, appellant urges that the death penalty, as prescribed punishment for conviction of first degree murder, is a cruel and unusual punishment, which is proscribed by Article 1, § 16, which provides as follows:
“Excessive bail, punishment, and penalties.—Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.”
¶12Second, appellant urges that the death penalty, as prescribed punishment for conviction of first degree murder, is a vindictive justice and violates the principles of reformation and as such is in violation of Article 1, § 18, which provides as follows:
¶13“Reformation as basis of penal code.—The penal code shall ■ be founded on the principles of reformation, and not of vindictive justice.”
¶14In In re Kremler (1889), 136 U. S. 436, 447, 10 S. Ct. 930, 933, 34 L. Ed. 519, 524, the Supreme Court of the United States stated:
“Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word used in the Constitution.”
¶15In Miller v. State (1897), 149 Ind. 607, 617, 618, 49 N. E. 894, 897, this court interpreted the word “cruel” and made the following statement:
*73“The word, according to modern interpretation, does not affect the legislation providing imprisonment for life or for years, or the death penalty by hanging or electrocution.”
¶16Similarly, in McCutcheon v. State (1927), 199 Ind. 247, 260, 155 N. E. 544, 549, we stated:
“Appellant assigns as another reason why he should be granted a new trial ‘that the verdict of the jury inflicts cruel and excessive punishment.’ The provisions 14, 15, of Art. 1, § 16, Indiana Constitution, § 68 Burns 1926, that ‘cruel and unusual punishment shall not be inflicted’ is not violated by a death penalty for murder. See Hobbs v. State (1893), 133 Ind. 404, 409, 32 N. E. 1019, 18 L.R.A. 774; Wilkerson v. Utah (1878), 99 U. S. 130, 25 L. Ed. 345. ‘It is absurd to suppose that the constitution prohibits’ punishment by death for murder, State v. Tomassi (1908), 75 N. J. Law 739, 747, 69 Atl. 214. The punishment fixed is legal and the Supreme Court could not interfere, if it so desired, on account of the severity of the penalty. McCulley v. State (1878), 62 Ind. 428; Murphy v. State (1884), 97 Ind. 579.
“Nor is the punishment of death for murder in the first degree in conflict with Art. 1, § 18 of the Constitution, § 70 Burns 1926—‘the penal code shall be founded on principles of reformation, and not vindictive justice.’ Such punishment ‘is not vindictive but is even-handed justice.’ Driskill v. State (1855), 7 Ind. 338, 343, necessarily meted out for the maintenance of the peace and the protection of the citizens of the state.”
¶17The English Parliament and the framers of our Constitution in this country used the language cruel and unusual punishment as a description of some of the punishment inflicted in the days of the early development of our law, such as burning at the stake, crucifixion, breaking on the wheel, draw and quartering, disembowelment alive, torture on the rack and other types of barbaric treatment. This language had a definite meaning and purpose when placed in the Constitution and in our opinion it does not eliminate the death penalty when the legislative body still sees fit to fix the same as a penalty in certain heinous crimes.
¶18*74We feel the question in our jurisdiction hardly needs to be discussed, since precedent and authority have determined the question against the position taken by the appellant and although a judge may personally not approve the punishment fixed by the legislature for some crimes, it is not the judge’s privilege, because he does not agree with the legislative policy, to attempt to nullify legislative enactment. We would be violating our oaths and stepping outside our jurisdictional function to do so.
¶19Likewise appellant’s contention that the death penalty as punishment for the crime of first degree murder is a “vindictive justice” is also without merit. In Driskill v. State (1855), 7 Ind. 338, 343, this court stated:
“The punishment of death for murder in the first degree, is not, in our opinion, vindictive, but is even-handed justice. There is, indeed, nothing vindictive in our penal laws. The main object of all punishment is the protection of society.”
¶20For the reasons stated we are bound by legislative policy and historical rationale, therefore, the appellant’s contention as to the death penalty must fail.
¶21The judgment of the trial court is affirmed.
¶23I dissent from the majority opinion and join wholeheartedly in the scholarly opinion of Judge DeBruler, which, in my judgment, has all of the weight of legal and social merit. I accept the opinion of the majority as a correct statement of case law upon the constitutional issues, when focused through the lens or stare decisis closed to its most narrow aperture. This Court, however, in recent years has not so limited its spectrum but has accepted the changing needs and demands of society as part of its responsibility. It is to be hoped that it will continue to do so. In view of the considerations so aptly presented by Judge DeBruler, I am compelled to draw our attention to recent pronouncements whereby we courageously struck down certain outmoded and ill considered doctrines that had theretofore chained us to the past by the shackles of repetition, as if the law were a series of tables to be learned and remembered by rote. In so doing, I am primarily concerned with our position with respect to Article I, § 18 of the Constitution of Indiana, in view of Rice v. The State (1855), 7 Ind. 332, and Driskill v. The State, (1855), 7 Ind. 338. Repeated, for convenience, Article I, § 18 is as follows:
“The penal code shall be founded on the principles of reformation, and not on vindictive justice.”
¶24In 1968 we struck down the doctrine of charitable immunity. (Harris v. Young Women’s Christian Association of Terre Haute, 250 Ind. 491, 237 N. E. 2d 242.) The doctrine was first adopted in America by the Supreme Court of Massachusetts, erroneously thinking it to be the law of England, which in fact had repudiated it ten years earlier. We applied a qualified rule in 1924, (St. Vincent’s Hospital v. Stine, 195 Ind. 350, 114 N. E. 537), followed through in 1963 (Richardson v. St. Mary’s Hospital, 135 Ind. App. 1, 191 N. E. 2d 337), effectively emasculated it in 1964 (Ball Memorial Hospital v. Freeman, 245 Ind. 71, 196 N. E. 2d 274) and laid it *98to rest in 1968, while acknowledging that by stare decisis, charitable immunity was the law of Indiana. Noting in the Harrisdecision that in 1924 at least twenty states granted charitable immunity and only three did not, while in 1968 the great majority of states denied such immunity while only eight or ten, including Indiana, held to the doctrine, we said:
“We, therefore, believe that the duty of this Court is to repudiate the doctrine of charitable immunity and in view of the fact that it is a Court-made rule, it is hereby abolished by this Court without waiting for the intervention of the Legislative Branch of Government.” Harris v. Young Women’s Christian Association of Terre Haute, supra, at 497.
¶25Certainly it was easier to take this action in view of so many of our sister states having previously done so, but it would have been easier yet to have doggedly held to the rule established and followed by our predecessors.
¶26In 1969 (Troue v. Marker, 253 Ind. 284, 252 N. E. 2d 800), with the intrepidity becoming a court of our statute, we applied the well reasoned dissent of Judge Sharp of our Appellate Court, notwithstanding the legal correctness of the majority opinion based upon strict application of stare decisis. We renounced our prior decisions denying a wife a cause of action for loss of consortion due to the injury of her husband. Calling the reasoning that gave rise to the rule “obviously specious” and declaring that “logic, reason and right are in favor of the position we are now taking. ….” We there declared:
“We find that there is no valid or consistent reason offered in the precedents urged by the appellee for a continuation of the doctrine that a wife cannot recover for loss of consortium of her husband. The change taking place in the authorities appears to us to be overwhelming.” 252 N. E. 2d at 806.
¶27In 1970 (O’Connor v. O’Cormor, 253 Ind. 295, 253 N. E. 2d 250), we reconsidered our prior position upon the well estab*99lished principle of domestic relations law, the doctrine of recrimination, “… In order to determine whether this Court can any longer sanction the use of that rule of law. . . .” 253 N. E. 2d at 255. The doctrine of recrimination dates back, in this state, at least to 1833. (Chrislianberry v. Christianberry, 3 Blackford 202.) Our opinion in O’Connor v. O’Connor, supra,is replete with citations espousing the doctrine as an absolute bar to divorce. Following a thorough analysis of the historical development, application and misapplication of the doctrine, we summed it up with a quote from Charles Dickens’ Oliver Twist: “ ‘If the law supposes that’ said Mr. Bumble, ‘the law is a ass, a idiot.’ ” 253 N. E. 2d at 258. We wrote critically of a court that denied the divorce on the grounds of public morality as embodied in legal precedent, notwithstanding that the interests of the parties and society obviously would have been better served by awarding the decree; and we concluded by saying “… it would thus appear to this Court that the application of recrimination as an absolute bar to divorce is no longer defensible. … 253 N. E. 2d at 259. What, then, should we say of public immorality embodied in legal precedent?
¶28Thusly have we, at the risk of momentary instability in our system, investigated the wisdom of precedents established many years ago and been constrained to look forward rather than backward. On those occasions, we exercised the authority that is clearly ours and fulfilled the responsibilities that we cannot deny. Our position in the case before us is the same. Whatever may have been the circumstances in 1855 motivating us to the decisions reached in Rice v. State, supra and Driskill v. State, supra, it is clear that we should not be governed by such mish-mash. In Rice v. State, supra, we said: “… There are cases beyond the hope of reformation—criminals whose necks have become so hardened ‘that they should suddenly be cut off, and that without remedy.’ ” 7 Ind. at 338. In other words, there are those that cannot be reformed. This may be true, but the framers of our constitution did not *100concede the point, hence the proscription “… The penal code shall be founded on the principles of reformation, … The remedy when we doubt the wisdom of the constitution is by way of amendment, not by blatant denial of its authority. In Driskill v. State, supra, we said: “… The punishment of death, for murder in the first degree is not, in our opinion, vindictive, but is even handed justice. … 7 Ind. at 343. There are many things in law that are so because we say they are so, but there are limits. Death, as punishment for a crime, any crime, cannot be other than vindictive, whatever may be the meaning of “even handed justice.” There can be no basis for denying that the death penalty offends against Article I, § 18, except by reliance upon these cases as precedent, and they are, as was said in the Harriscase, supra, built on a foundation that did not exist. The doctrine of stare decisis itself compels us to abandon it when it does not serve the objectives of sense and justice.
¶29From the disclosures of Judge DeBruler’s opinion, it is clear to me that we have abandoned capital punishment in this state. All that remains to be done is to abolish it; and it is ludicrous and inhumane to any longer suspend those under sentence of death in a state of limbo, pending formal abolition. We should consider the realities of procuring legislative enactments. Few are directly affected by the question before us. Who is to sponsor their bill, guide it through the committees, and champion it on the floor? We are the guardians of the rights of the most lowly among us, and for us to require them to await the miracle of legislative action in their behalf is an unwarranted passing of our responsibility to the Governor’s office or to higher judicial authority and is a denial of constitutional rights. Whether it is a greater cruelty to entinguish a man’s life than to lock him in a cage and submit him to unspeakable indignities and torment is a question upon which reasonable minds might well differ. None, however, will deny that the former has a certain finality about it not encompassed in the latter. I believe that it is *101because of this finality and the fallibility of man that § 18 was incorporated as a part of Article I of our state constitution; and until we are more learned in the principles of resurrection or at least reincarnation, I cannot accept a sentence of death as consistent with principles of reformation.
¶30Note.—Reported in 271 N. E. 2d 425.