Culley v. State
| Decision Date | 08 March 1923 |
| Docket Number | 24,102 |
| Citation | 138 N.E. 260,192 Ind. 687 |
| Parties | Culley v. State of Indiana |
| Court | Indiana Supreme Court |
From Posey Circuit Court; Robert J. Tracewell, Special Judge.
Prosecution by the State of Indiana against Raymond Culley. From a judgment of conviction, the defendant appeals.
Reversed.
John W Spencer and John W. Spencer, Jr., for appellant.
U. S Lesh, Attorney-General, and Mrs. Edward Franklin White, for the state.
The charge is grand larceny. The affidavit was filed June 13 1921, charging the defendant with the stealing of fifty chickens, committed on or about June 11, 1921. The chickens were alleged to be of the value of $ 40 and the property of one Emil Noelle.
No question is raised on the sufficiency of the affidavit. A plea of not guilty was entered and the case was tried by jury, and the jury returned a verdict as follows: "We, the jury, find the defendant guilty of petit larceny as charged in the affidavit and that he is thirty years of age."
The only error assigned is the overruling of appellant's motion for a new trial. Under that assignment appellant alleges that the court erred in refusing to give instruction No. 4, and instruction No. 8, and each of them, tendered by the defendant.
The appellant testified as a witness in his own behalf. Evidence was introduced on the part of the state impeaching the testimony of the defendant and also the testimony of one of the witnesses testifying on behalf of the defendant. There was also evidence tending to impeach one of the witnesses testifying on behalf of the state. As bearing upon this evidence the defendant tendered instruction No. 4, as follows:
The infirmity of this instruction is found in the last sentence as follows: "Therefore, if a witness is successfully impeached you may disregard his testimony, unless he is corroborated by other unimpeached testimony or circumstances in the case." "Impeach" means to call in question, seek to disparage, to seek to prove unworthy of belief, to discredit; as to impeach the veracity of a witness. Anderson's Law Dictionary.
The jury are the sole judges of the credibility of the evidence and it is for them to determine how to arrive at the credibility of evidence. And in determining what evidence is credible they are not restricted to such evidence as has not been disputed, disparaged, or attempted to be impeached.
It is not error to refuse a tendered instruction, unless it ought to be given precisely in the terms prayed. Roots v. Tyner (1857), 10 Ind. 87; Goodwin v. State (1884), 96 Ind. 550; Ricketts v. Harvey (1886), 106 Ind. 564, 6 N.E. 325; Diamond Block Coal Co. v. Cuthbertson (1906), 166 Ind. 290, 76 N.E. 1060; Knapp v. State (1907), 168 Ind. 153, 79 N.E. 1076, 11 Ann. Cas. 604. The refusal to give this instruction was not error.
The appellant also contends that the court erred in refusing to give instruction No. 8, tendered by him, as follows: "The law presumes that a person charged with a criminal offense has a good character or reputation until the contrary is shown by the evidence; and the jury has no right to consider a failure on the part of the defendant to introduce evidence of his good character as a circumstance against him or as tending to prove his guilt."
In this case the defendant was a witness in his own behalf and on rebuttal the state gave evidence tending to impeach his testimony. When the defendant chooses to testify in his own behalf, he is upon the same plane as any other witness and his testimony may be impeached in the same manner as the testimony of any other witness may be impeached in a criminal case.
The state in this case introduced evidence tending to impeach the testimony of the defendant. There was also evidence introduced by the state concerning the general moral...
To continue reading
Request your trial