Cole v. State

• Decision Date: 09 December 1930
• Docket Number: 25,444
• Parties: Cole v. State of Indiana
• Court: Indiana Supreme Court

173 N.E. 597

203 Ind. 616

Cole v. State of Indiana

No. 25,444

Supreme Court of Indiana

December 9, 1930

Rehearing denied June 29, 1932.

1. CRIMINAL LAW---Refusal of Tendered Instruction---When Error.---The refusal of a tendered instruction is not error unless the instruction ought to be given precisely in the terms prayed. p. 620.

2. CRIMINAL LAW---Refusal of Tendered Instruction---When Not Error.---It is not error to refuse to give a tendered instruction when the proposition of law stated therein is fully covered by instructions given by the court. p. 621.

From Martin Circuit Court; Milton S. Hastings, Judge.

Charles Cole was convicted of unlawfully possessing a still and distilling apparatus, and he appealed.

Affirmed.

W. E Cox and Fabius Gwin, for appellant.

James M. Ogden, Attorney-General, and Merl M. Wall, Deputy Attorney-General, for the State.

OPINION

Willoughby, J.

An affidavit was filed against this appellant and another in the Martin Circuit Court. The charging part of said affidavit is as follows: "That on or about July 31, 1925, at and in the county of Martin, State of Indiana, and Charles Cole, unlawfully had in their possession and under their control to use and assist in using a still and distilling apparatus for the unlawful manufacture of intoxicating liquor." The appellant and his codefendant were tried by a jury on a plea of not guilty and the jury returned a verdict of guilty as to both of them. A motion for a new trial was filed by this appellant and overruled and judgment entered upon the verdict of the jury. From such judgment this appeal is taken.

The only assignment of error is that the court erred in overruling appellant's motion for a new trial. The only specification of error, which is not waived, is that the court refused to give each of instructions numbered 1, 3 and 5, tendered by the appellant.

In the case of Shenkenberger v. State (1900), 154 Ind. 630, 57 N.E. 519, an instruction requested by the appellant was as follows: "Where a criminal cause is tried by a jury, the law contemplates the concurrence of twelve minds in the conclusion of guilt before a conviction can be had.

"Each juror must be satisfied, beyond a reasonable doubt of the defendant's guilt, before he can, under his oath, consent to a verdict of guilty.

"Each juror should feel the responsibility resting upon him as a member of the body, and should realize that his own mind must be convinced, beyond a reasonable doubt, of the defendant's guilt, before he can consent to a verdict of guilty.

"If any one of the jury, after having duly considered all of the evidence, and after having consulted with his fellow jurymen, entertain such reasonable doubt, the jury cannot, in such case, find the defendant guilty."

This instruction the court refused to give and such refusal was assigned as one of the reasons for a new trial. In refusing that instruction the court said: "It is said on behalf of the appellant that an instruction substantially like this received the sanction of this court in Castle v. State, 75 Ind. 146, and that the cases of Clem v. State, 42 Ind. 420, Stitz v. State, 104 Ind. 359, 4 N.E. 145, and Parker v. State, 136 Ind. 284, 35 N.E. 1105, sustain the claim of the appellant that the instruction should have been given.

"The instruction refused combines a part of the charge held proper in Castle v. State, supra, with a portion of the reasoning of the court in that case. In Castle v. State, supra, the appellant complained that none of the charges given by the court embodied the idea that each juror must be satisfied, by the evidence, of the guilt of the defendant, before a conviction could be had. The court sustained that view, and decided that the proposition contained in the instruction asked for, viz., that 'if any one of the jury, after having duly considered all of the evidence, and after having consulted with his fellow jurymen, entertains such reasonable doubt, the jury cannot in such case find the defendant guilty,' was correct in point of law." The court then takes up the cases of Clem v. State and Stitz v. State, supra, and Parker v. State, supra, and discusses them, and says that the rule to be deduced from the decisions is that in a criminal case the defendant is entitled to the benefit of an instruction to the effect that each juror must be satisfied by the evidence of the guilt of the defendant beyond a reasonable doubt, before he can consent to a verdict of guilty.

The court further states that in the special instruction under examination, the single legal proposition is that each juror must be satisfied of the guilt of the defendant beyond a reasonable doubt before he can consent to a verdict of conviction. This is a correct statement of the law. The only inquiry then is whether this proposition was, or was not contained in the charge as given. The court used this language: "'I instruct you that if from all the evidence in the case, you, each, believe, as jurors, beyond a reasonable doubt, that the defendant committed the acts of which she is accused, in manner and form as charged in the indictment,' etc." The court then says: "In our opinion, this instruction sufficiently advised the jury as to their individual responsibility, and that each of them must be so convinced before he could consent to a verdict of conviction. No complaint is made that the jury, as a body, were not fully and properly instructed that they must be satisfied by the evidence of the guilt of the defendant beyond a reasonable doubt, before they could convict her. This admonition was repeated throughout the charge, and in connection with every aspect of the case. The objection taken to the decision of the court, in refusing to give the special instruction asked for, is that the idea of the individual responsibility of the jurors was not made prominent enough. In this view, we cannot concur. In our opinion, the language employed by the court was better adapted to convey to the jurors an adequate idea of their duty than that proposed by appellant. The latter was...