Beavers v. State

• Decision Date: 26 March 1957
• Docket Number: No. 29452,29452
• Citation: 236 Ind. 549,141 N.E.2d 118
• Parties: Lloyd BEAVERS, Appellant, v. The STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 118

141 N.E.2d 118

236 Ind. 549

Lloyd BEAVERS, Appellant, v. The STATE of Indiana, Appellee.

No. 29452.

Supreme Court of Indiana.

March 26, 1957.

Branaman & Markel, Thomas H. Branaman, Bruce Markel, Jr., Brownstown, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Merl M. Wall, Deputy Attys. Gen., for appellee.

ARTERBURN, Judge.

The appellant was convicted of assault and battery--sex, involving an offense against a child 'under the age of 16 with intent to gratify sexual desire.' He appeals from this conviction. The errors relied upon are contained in the motion for a new trial, and the first to be considered is that the verdict of the jury was not sustained by sufficient evidence, and was contrary to law.

The prosecuting witness was a girl of nine years. She and her mother both testified that she went alone to the store of the appellant to purchase ice cream shortly after 7:30 p.m. on August 21, 1944, which was Sunday. While in the store eating the ice cream the girl testified the alleged attack took place behind some fixtures therein. It was interrupted by the mother calling for the girl. As the child came out of the store, her mother across the road saw her daughter pulling up her panties. She noticed the lights were off as the daughter left the store, but were turned on again by the time her daughter reached her. Her daughter at the time told her what had occurred. The mother saw the appellant leaving the store, and at once approached him and charged him with molesting the girl. This he denied. He showed her some cigarettes which he said he had gone back to get at the store, fumbled them and dropped them on the ground, backing away from the mother. Afterwards, she took her daughter home and examined her, and found tobacco rubbed over her genital region. She then took her daughter within an hour and one-half for examination by a physician. The physician's testimony, without going into the details, substantiated the mother's accusations and the offense charged.

This evidence corroborates the detailed testimony of the girl, and is sufficient to sustain the verdict of the jury. We may not weigh the evidence or pass upon the credibility of the witness.

The remaining errors assigned are those which concern the instructions given by the court. The appellant contends that the court erred in refusing to give defendant's tendered Instruction No. 11. We have examined this instruction which concerns the law on reasonable doubt existing in the minds of the jurors, and we find that this instruction has been adequately covered by the court's own Instruction No. 4.

The appellant next complains of the court's refusal to give his tendered Instruction No. 12. This instruction in substance warned the members of the jury against allowing or permitting any prejudice to influence their verdict. There is no showing that any such prejudice existed in this case, not that the appellant had exhausted his peremptory challenges, and was thereby harmed.

The appellant further says that the court committed error in refusing his tendered Instruction No. 14 which concerned the force and effect of circumstantial evidence. It was not error to refuse such instruction in view of the fact that the state's case was not based solely upon circumstantial evidence. There was direct evidence by statements of the alleged victim as to the facts. Where there is direct evidence to prove a crime an instruction on circumstantial evidence may be properly refused. Culp. v. State, 1944, 222 Ind. 202, 52 N.E.2d 486; Wolfe v. State, 1929, 200 Ind. 557, 159 N.E. 545; Moore v. State, 1926, 198 Ind. 547, 153 N.E. 402, 154 N.E. 388.

The appellant confines most of his argument and attention to his claimed errors in the refusal to give his tendered Instruction No. 9, which reads as follows:

'You are the exclusive judges of the facts proven and the credibility of the witnesses and this being a criminal action you are also the exclusive judges of the law, but it is the duty of the court to instruct you as to the law of the case. These instructions, however, are not given for the purpose of controlling your judgment but are intended only to aid you in understanding the law. You have a right to disregard them altogether if you desire and to determine what the law of this case is for yourselves.'

and the giving by the court of its own Instruction No. 12, which reads as follows:

'The constitution of this state makes the jury the judge of the law as well as the facts. But this does not mean that the jurors may wilfully and arbitrarily disregard the law, nor that they make and judge the law as they think it should be in any particular case. It means that the jurors, under their oaths, should honestly, justly and impartially judge the law as it exists, and as it is found upon the statutes of our state, in each particular case. It does not mean that the jurors may so judge the law in any case as to make it null and void and of no force, but that they shall so judge the laws as to give them a fair and honest interpretation, to the end and to the effect that each and every law, in each and every case, may be fairly and honestly enforce. Any other interpretation of the law would weaken the safeguards erected by society for its protection; for by the non-enforcement of the law and its penalties in all criminal cases where it is shown by the evidence, beyond a reasonable doubt, to have been violated, contempt for the law is bred among the very class that it is intended to restrain. The facts must be so judged and found by the jury from a careful consideration of all the testimony given by the witnesses in the case, and under your oaths, you have no right to arbitrarily disregard either the law or the facts in the case, without just cause, after a fair and impartial consideration of both.'

The argument devoted to these points are based primarily upon the provision in the Indiana Constitution, art. 1, § 19, which reads as follows:

'In all criminal cases whatever, the jury shall have the right to determine the law and the facts.'

The appellant states:

'If the provisions in the Constitution of Indiana mean anything it is not to be limited, restricted, controlled, or influenced, or hampered by the court or legislature in the full, free and voluntary exercise of the jury of their sole constitutional right * * *.'

Since both of these instructions concern the same questions of law we shall consider them together.

District in colonial day of crown appointed judges probably gave rise to the common law doctrine of the right of juries to determine the law in criminal cases. It seems this doctrine was rather narrow in its original scope. It merely offered the opportunity for juries to acquit a prisoner without a review by the judge. It did not deny the court the right to set aside a guilty verdict which was erroneous. Many states in their early history conferred upon juries in general terms the power to determine the law and the facts in criminal cases by statute or constitution. In most cases these provisions were interpreted as nothing more than a restatement of a common law principle. The Supreme Court of the United States laid to rest this theory at common law in Sparf. v. United States, 1895, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343. Indiana and Maryland are today the sole survivors of this archaic constitutional provision that a jury may determine the law in criminal cases.

52 Harvard L. Review (1939), p. 582.

'Among the very few exceptions, Indiana may claim the dubious distinction of giving the outmoded relic its widest present day application.' 24 Notre Dame Law Review (1949), pp. 365, 366.

In Illinois whose history parallels that of this state, a similar provision in a statute was literally applied in the early days of the state, and although the court was permitted to instruct the jury in criminal cases it told the jury it 'should not be absolutely bound by such instruction.' Schnier v. People, 1859, 23 Ill. 17.

However, by 1906, the trial courts were telling the juries with the approval of the Supreme Court that the instructions of the court could be disregarded, 'if they can say upon their oaths that they know the law better than the court' and 'before assuming so solemn a responsibility, they should be sure they are not acting from caprice or prejudice; * * *.' 'No honest and intelligent jury would, upon reflection, say that by their study and experience they were better qualified to judge of the law than the court, * * *.' Juretich v. People, 1906, 223 Ill. 484, 79 N.E. 181; Fisher v. People, 1860, 23 Ill. 283; Mullinix v. People, 1875, 76 Ill. 211; Spies v. People, 1887, 122 Ill. 1, 252, 12 N.E. 865, 17 N.E. 898.

Considering appellant's rendered Instruction No. 9 we find no provision in the constitution that warrants stating to the jury that it is the exclusive judge of the law in criminal cases. On the other hand, the constitution vests the judicial powers 'in a Supreme Court, in Circuit Courts and such other courts as the General Assembly may establish.' Art. 7, § 1, Constitution of Indiana.

The Supreme Court has no jury functions. Its judicial powers include the determination of the law under the same constitution which grants such power to a jury. If possible, the provisions of the constitution must be construed together, and not so as to create a conflict. To say the jury is the exclusive judge of the law would cause an irreconcilable conflict in the operation of at least two of the provisions of the constitution. We also know in practice that the judge in criminal cases determines the law in all procedural matters; that during the trial the judge, not the jury, determines the law as to the admissibility, of the evidence, and thereafter on a motion to direct an acquittal, or for a new trial he again determines the law. If a jury is the 'exclusive' judge of the law, then it should determine all such questions of law...