Erfman v. State
| Decision Date | 25 February 1935 |
| Docket Number | 26304 |
| Citation | 194 N.E. 326,207 Ind. 673 |
| Parties | ERFMAN v. STATE |
| Court | Indiana Supreme Court |
Appeal from Ripley Circuit Court; Frank Gardner, Judge.
Wycoff & Wycoff, of Batesville, for appellant.
Philip Lutz, Jr. Atty. Gen., and Walter E. Stanton, Asst. Atty Gen., for the State.
The appellant and one Raymond Myers were indicted in two counts in the Ripley circuit court. One count charged them with burglary in the first degree, and the other count charged them with grand larceny.
The appellant was tried separately and found guilty under the count charging him with grand larceny, and was sentenced to the Indiana State Reformatory for a period of not less than one nor more than ten years.
The errors relied upon are as follows: (1) The court erred in overruling appellant's motion to quash the second count of the indictment. (2) The court erred in overruling appellant's motion for a new trial.
The first assignment of error has been waived by the appellant in his brief, and therefore the same will not be considered.
The motion for a new trial contained four reasons (1) The verdict is contrary to law. (2) The verdict is not sustained by sufficient evidence. (3) Error in giving instruction No. 3. (4) Error in giving separate and several instructions, numbered 1 to 26, inclusive.
Under points and authorities only instructions numbered 3, 12, 14 15, and 16 1/2 are relied upon as being erroneous, and therefore all others are waived.
That part of instruction No. 3, complained of, is as follows:
We do not see that this instruction is either misleading or prejudicial to the appellant. We think it fairly instructs the jury upon the propositions of law involved.
Part of instruction No. 12 states that: '* * * If there is conflicting testimony you should reconcile it if you can, but if you can not do so, you may believe one witness and disbelieve another.'
Complaint is made because the court did not further tell the jury that it was their duty to reconcile the evidence upon the theory of the defendant's innocence, if it could reasonably be done. The instruction taken as a whole was a correct statement of the law. No request was made by the appellant for an instruction containing the particular language now complained of, and the appellant tendered no such instruction. Error cannot be predicated on the giving of an instruction which states the law correctly as far as it goes, in the absence of a request for a more complete instruction and a denial of such request which results in harm to the defendant. Brewster v. State (1917) 186 Ind. 369, 115 N.E. 54; Bartlow v. State (1915) 183 Ind. 398, 109 N.E. 201.
No error was committed in giving instruction No. 14. It relates to the duty of the jury being the judge of the law as well as of the facts, and, taken as a whole, correctly states the law.
Two objections are raised to instruction No. 15. This instruction is upon the subject of reasonable doubt. The instruction contains the sentence: 'It (reasonable doubt) does not furnish a shield for those, actually guilty, whereby to escape merited punishment.' The appellant contends that this is an erroneous statement. We do not think so. It is certainly a correct statement of the law when applied to the question of 'reasonable doubt.' In the same instruction the following language is used: 'But in this case, if you are so convinced by the evidence of whatever class it may be. * * *' (Our italics.) The appellant contends that this language, 'of whatever class it may be,' is objectional and renders the instruction erroneous. He relies upon the case of Derry v. State (1932) 204 Ind. 21, 182 N.E. 701. The facts in the Derry Case are very different from those in the instant case, and the instruction in that case would not be controlling here. We think the ruling on the instruction in that case was correct. In the Derry Case there were several classes of evidence introduced; that charge was that of driving an automobile while intoxicated. Evidence was introduced, however over the objection of the defendant, that he was transporting liquor, that he had in his automobile an automatic revolver, cartridges, and pints and jugs of liquor. All these were admitted in evidence and placed on a table before the jury. The court held in the Derry Case that by an instruction which used the language, as used in the instant case, the jury might have understood that there was more than one class of evidence for its consideration, some of which evidence was admissible and some not, and therefore such an instruction would be erroneous. We have no such state of facts in the instant case, and we do not think the instruction as applied to the facts in the present case is erroneous. Practically the identical instruction was given in the case of Hinshaw v. State (1919) 188 Ind. 447, 124 N.E. 458, and was held to be good.
Complaint is also made of the following language used in instruction No. 16, which is as follows: 'You may find any fact to be true which may rightfully and rationally be inferred from the evidence given in the case.' Appellant contends that any material fact to be proved must be proven beyond a reasonable doubt. We agree to this, but when this instruction is considered and construed with other instructions given, the objection is groundless. The jury were fully instructed on the law of reasonable...
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