Bird v. The State

Decision Date22 June 1886
Docket Number13,088
Citation8 N.E. 14,107 Ind. 154
PartiesBird v. The State
CourtIndiana Supreme Court

From the Montgomery Circuit Court.

The judgment is reversed, with instructions to the court to sustain appellant's motion for a new trial.

W. H Thompson, W. B. Herod and J. West, for appellant.

F. T Hord, Attorney General, and W. B. Hord, for the State.


Zollars, J.

Appellant was convicted upon a charge of grand larceny. He has appealed and brought up the case upon the instructions without the evidence.

Instruction 3 1/2 was as follows: "To convict the defendant the State must prove that the property, or some part thereof described in the indictment, was taken by the defendant; that at the time it was taken it was the property of William McIvor; that it was taken in Montgomery county, Indiana, and within two years next preceding the finding of the indictment, which was October 9th, 1885."

It is contended that by this instruction the court assumed to give to the jury all of the facts necessary to be found in order to justify a conviction, and that it is defective in that there was an omission to state that the taking must have been felonious, and that the property taken must have been of some value.

When it is undertaken to state in an instruction all of the elements of the offence necessary to a conviction, and an essential element is omitted, the instruction will be fatally defective. Hart v. State, 57 Ind. 102; Hunter v. State, 101 Ind. 241.

We do not think, however, that the instruction is fairly open to the objections urged against it. It was stated in the instruction, that to convict the defendant the State must prove certain things, but it was not stated that the proof of those facts would alone justify a conviction, without reference to other facts and other instructions by the court. In the third charge, the jury were properly instructed that the taking must have been felonious, and as to the necessary value of the property taken to constitute grand larceny.

In the fourth charge, the jury were instructed that they were the judges both of the law and of the evidence; that the instructions by the court were advisory merely, and that if they differed with the court as to the law, they might follow their own convictions, and disregard the instructions of the court. The latter part of the instruction of which appellant complains was as follows: "If, however, you have no well defined opinion or convictions as to what the law is relating to any particular matter or matters at issue in the case, then, in determining what it is, you should give the instructions of the court respectful consideration."

It is undoubtedly true, that in this State the jury may disregard the instructions of the court in a criminal case, and follow their own convictions, but it must be true, also, that the jury should give to the instructions of the court a respectful consideration in all cases, and especially if they are in doubt as to what the law in the case may be. It is made the duty of the court to instruct the jury. It would seem to follow that the jury should at the least give to the instructions a respectful consideration. Keiser v. State, 83 Ind. 234; Lynch v. State, 9 Ind. 541; Powers v. State, 87 Ind. 144; Nuzum v. State, 88 Ind. 599; Long v. State, 95 Ind. 481.

The sixth instruction was as follows: "The defendant has testified in his own behalf. In weighing his testimony the fact that he is the defendant, and, therefore, deeply interested in the result of the prosecution, should not be overlooked, but it does not follow that because of his interest you should disregard his testimony or refuse to give him credit. Innocent men are sometimes charged with the commission of grave offences. If the defendant's testimony, when compared with all the other facts and circumstances in evidence, is consistent and harmonious, it may have a controlling weight in deciding the case, but the weight it shall have is a matter left wholly to your consideration and judgment."

This instruction can not be sustained. Very clearly it discredits the testimony of appel...

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2 cases
  • Bird v. State
    • United States
    • Indiana Supreme Court
    • June 22, 1886
  • Fosdyke v. Nixon
    • United States
    • Indiana Supreme Court
    • June 22, 1886
    ... ... to each of the fifth and sixth paragraphs of his answer, and ... that appellee's claim or complaint does not state facts ... sufficient to constitute a cause of action ...           [107 ... Ind. 139] There was no demurrer below to the claim or ... ...

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