Boughan v. State

• Decision Date: 13 February 1923
• Docket Number: No. 24095.,24095.
• Parties: BOUGHAN et al. v. STATE.
• Court: Indiana Supreme Court

193 Ind. 66

138 N.E. 87

BOUGHAN et al.

v.STATE.

No. 24095.^*

Supreme Court of Indiana.

Feb. 13, 1923.

Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.

Everett Boughan and Sam Katz were convicted of grand larceny, and they appeal. Reversed, with instructions to sustain motion for new trial.

Wm. J. McAleer, Francis J. Dorsey, and Gerald A. Gillett, all of Hammond, and John F. Byrne, of Chicago, Ill., for appellants.

U. S. Lesh, Atty. Gen., and Connor D. Ross, First Deputy Atty. Gen., for the State.

TRAVIS, C. J.

Appellants were charged in an affidavit with the crime of robbery, upon a trial of which the jury returned a verdict against them of the crime of grand larceny, and from the judgment upon the verdict appellants appeal, and assign as error the overruling of their motion for a new trial, based upon the alleged errors committed by the court, by the giving of each of two instructions, and that the verdict of the jury is contrary to law, and that it is now sustained by sufficient evidence.

[1] One of the instructions relates to the evidence of and who are accomplices, and the other to reasonable doubt. Objection is made to the first instruction, that it was an unwarranted invasion of the province of the jury, based upon the following sentence taken from the instruction, to wit:

“John Pon and Walter McIntosh have testified as witnesses in this case, and, under their testimony, they are what is known in law as accomplices.”

Appellants insist that by the language used in this sentence in the instruction the court instructed the jury that Pon and McIntosh “were what is known in law as accomplices,” and suggest by way of argument that this part of the instruction should have been worded:

“That Pon and McIntosh have testified as witnesses, and, if you find from the evidence that such testimony is true, then they are known in law as accomplices.”

The quotation from the argument in appellant's brief is clear and unambiguous, but the sentence as a whole, from the instruction, is not subject to the interpretation that the two witnesses named were accomplices of the defendants in any and all events, but that, according to their testimony only were they known as accomplices in law. The instruction is not erroneous.

[2][3][4] That part of the instruction complained of concerning reasonable doubt is:

“A reasonable doubt is one that arises naturally and spontaneously in the mind after a fair and impartial consideration and weighing of all of the evidence in the case and a determination and application of the law of the case, and leaves the mind in such condition that you do not feel an abiding satisfaction to a moral certainty of...