Cole v. State , 25444.
Decision Date | 09 December 1930 |
Docket Number | No. 25444.,25444. |
Parties | COLE v. STATE. |
Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Martin Circuit Court; Milton S. Hastings, Judge.
Charles Cole was convicted of unlawfully possessing a still and distilling apparatus, and he appeals.
Affirmed.
W. E. Cox, of Jasper, and Fabe Gwin, of Shoals, for appellant.
James M. Ogden, Atty. Gen., and Merl M. Wall, of Indianapolis, for the State.
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, 154 Ind. 630, 57 N. E. 519, 523, an instruction requested by the appellant was as follows:
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: 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:
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