Buffkin v. State

• Citation: 106 N.E. 362,182 Ind. 204
• Decision Date: 08 October 1914
• Docket Number: 22,607
• Parties: Buffkin v. State of Indiana
• Court: Supreme Court of Indiana

106 N.E. 362

182 Ind. 204

Buffkin v. State of Indiana

No. 22,607

Supreme Court of Indiana

October 8, 1914

From Pike Circuit Court; John K. Chappell, Special Judge.

Prosecution by the State of Indiana against Floyd Buffkin. From a judgment of conviction, the defendant appeals.

Affirmed.

R. W Armstrong, for appellant.

Thomas M. Honan, Attorney-General, and Thomas H. Branaman, for the State.

OPINION

Cox, C. J.

Appellant was tried on an indictment which charged him with murder in the first degree. The jury found him guilty of murder in the second degree and judgment was rendered on the verdict. In this appeal from that judgment appellant has assigned and relies on the action of the trial court in overruling his motion for a new trial as error.

Among the numerous causes for a new trial stated in appellant's motion was the giving of instruction No. 3. It is now urged that the giving of this instruction was an error which prevented appellant from having a fair and lawful trial in that counsel for appellant claims it, by the use of "should" instead of "may," invaded the right of the jury under the Constitution of the State to determine the law in criminal cases (Constitution, Art. 1 § 19). The instruction thus assailed reads as follows: "If the evidence justifies, you may, upon the indictment, find the defendant guilty of murder in the first degree, or of murder in the second degree, or of manslaughter. If all the allegations of the indictment have been proved beyond a reasonable doubt you should find the defendant guilty in the first degree. If all the allegations in the indictment except the allegation of premeditation have been proved to you beyond a reasonable doubt, you should find the defendant guilty of murder in the second degree. If all the allegations of the indictment except the allegations of premeditation and malice have been proved to you beyond a reasonable doubt, you should find the defendant guilty of manslaughter. If no one of the degrees herein enumerated have been proved to your entire satisfaction beyond a reasonable doubt, you should find the defendant not guilty." In instructions preceding this one the court had correctly stated to the jury the material allegations of the indictment and defined the degrees of murder and the felony of manslaughter included in the charge. And following the instruction complained of, the court formally and correctly satisfied the constitutional provision by stating to the jury in another instruction that it was the right of the jury to determine the law as well as the facts in the case. Under these circumstances it is definitely settled that giving an instruction such as that here involved is not an invasion of the constitutional right of the jury to determine the law and not error. Blocher v. State (1912), 177 Ind. 356, 361, 98 N.E. 118, and cases there cited.

Counsel for the appellant makes the alleged misconduct of the prosecuting attorney in referring to and discussing in his argument testimony which had been stricken out and withdrawn from the jury, the basis of one of the causes for a new trial. So far as the record may be said to disclose anything at all available to appellant relevant to this cause for a new trial, it appears from the special bill of exceptions through which the matter is sought to be presented, that counsel for appellant objected at the time and moved the court to admonish the prosecuting attorney and to instruct the jury not to consider the statement made for the reason that there was no such evidence in the trial, "which motion", it is recited, "was sustained and the court then and there admonished the prosecuting attorney, and instructed the jury that they should not consider the statement of the prosecuting attorney...