Burris v. State
| Decision Date | 23 June 1941 |
| Docket Number | 27498. |
| Citation | 34 N.E.2d 928,218 Ind. 601 |
| Parties | BURRIS v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Owen Circuit Court; Frank Martin Judge.
Edwin C. Henning, of Evansville, and Willis Hickam, of Spencer, for appellant.
Geo N. Beamer, Atty. Gen., and Geo. B. Davis, Deputy Atty. Gen for appellee.
The appellant was tried by a jury and convicted of operating a motor vehicle on a public highway of this state while under the influence of intoxicating liquor, in violation of § 47-2001, Burns' 1933, § 11189-62, Baldwin's Supp.1939. Two errors are assigned: (1) that the 'appellant was deprived of his legal and substantial rights by not being taken immediately before a magistrate upon his arrest as by law provided,' and (2) that the trial court erred in overruling the appellant's motion for a new trial.
The first assignment is based on § 47-2307, Burns' 1933, § 11189-174, Baldwin's Supp.1939, which provides that whenever any person is arrested upon a charge of driving a motor vehicle while under the influence of intoxicating liquor or narcotic drugs, he shall be immediately taken before a magistrate within the county in which the offense is alleged to have been committed and who has jurisdiction of such offense and is nearest or most accessible with reference to the place where said arrest is made. It does not appear from the record that the trial court was afforded any opportunity to redress the alleged wrong done the appellant, or that it was apprised of his claim that his rights were violated by the arresting or prosecuting officials. This is primarily a court of review, and the above assignment therefore presents nothing for our consideration.
The motion for a new trial charges numerous alleged errors. The court gave on its own motion instruction No. 19, as follows:
By a statute of this state, the trial court is required to charge the jury in a criminal case as to 'all matters of law which are necessary for their information in giving their verdict', § 9-1805, Burns' 1933, § 2285, Baldwin's 1934; but the Constitution of Indiana provides in Section 19 of Article 1 that: 'In all criminal cases whatever, the jury shall have the right to determine the law and the facts.' This constitutional mandate has never been construed as restricting the power of a trial court to declare the law to a jury, but it has been said in numerous cases that this must not be done in a manner calculated to bind the consciences of the jurors or restrict them in their right under the Constitution to determine the law for themselves.
The part of the above instruction objected to is the last sentence thereof, where the jurors were told that they should weigh the instructions as they weigh the evidence. An instruction substantially like the one before us was approved without discussion in Blaker v. State, 1892, 130 Ind. 203, 29 N.E. 1077; and in Chesterfield v State, 1924, 194 Ind. 282, 141 N.E. 632, it was said that it was not error to give such a charge. However, in Hubbard v. State, 1925, 196 Ind. 137, 147 N.E. 323, it was held that it was improper to give this instruction in connection with another to the effect that it was the duty of the jury to reconcile all of the evidence so as to believe all of the testimony, if that could reasonably be done, and the Blaker case, supra, was disapproved. The instruction was again condemned in Wolf v. State, 1926, 198 Ind. 261, 151 N.E. 731, but the giving of it was held to be harmless, in view of the fact that the instructions taken as a whole were more favorable to the defendant than he was entitled to have them; and in Lehr v. State, 1927, 199 Ind. 280, 157 N.E. 98, the court cited the Hubbard case, supra, and held that no question was presented as to a like instruction, although the court said that the use of the word weigh instead of consider therein was...
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