234
Opinion of the Court
cated to the jury that more than one verdict was possible, id., at 27-28, on this record it is impossible to tell which of these statements the jury relied on. The dissent concludes that the jury acquitted on Count I for lack of intent, based on the fact that the only way the jury could have expressed that conclusion was by leaving the Count I verdict form blank, as it did. What stands in the way of such an inference, however, is that the jury would also have acted as it did after reaching a guilty verdict on Count II but without ever deliberating on Count I. In short, since it was not clear to the jury that it needed to consider each count independently, we will not draw any particular conclusion from its failure to return a verdict on Count I.
The jury instructions on the issue of intent to kill were also ambiguous. Under Indiana law, a person who either "knowingly or intentionally kills another human being" or "kills another human being while committing or attempting to commit . . . rape" is guilty of "murder." Ind. Code § 35- 42-1-1 (Supp. 1978). Thus, intent to kill is not required for a felony murder conviction. Schiro reasons that since the jury found him guilty of felony murder in the course of a rape, but failed to convict him of intentional murder, the jury must have found that he did not have an intent to kill.
We do not so interpret the jury's failure to convict on Count I, however. Although the jury was provided with the state law definition of murder, App. 21, the judge also instructed the jury that the State had to prove intent for both felony and intentional murder: "To sustain the charge of murder, the State must prove . . . [t]hat the defendant engaged in the conduct which caused the death of Laura Luebbehusen [and] [t]hat when the defendant did so, he knew the conduct would or intended the conduct to cause the death of Laura Luebbehusen." Id., at 22-23 (emphasis added). This instruction did not differentiate between the two ways of proving "murder" under Indiana law. The jury was fur-
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