Hines v. State

• Decision Date: 02 February 1926
• Docket Number: No. 24860.,24860.
• Citation: 150 N.E. 371,197 Ind. 575
• Parties: HINES v. STATE.
• Court: Indiana Supreme Court

197 Ind. 575

150 N.E. 371

HINES

v.STATE.

No. 24860.^*

Supreme Court of Indiana.

Feb. 2, 1926.

Appeal from Delaware Circuit Court; Clarence W. Dearth, Judge.

May Hines was convicted of the unlawful manufacture of intoxicating liquor, and she appeals. Affirmed.Walterhouse & Miller, of Muncie, for appellant.

Arthur L. Gilliom, Atty. Gen., and Arnet B. Cronk and Carl J. Wilde, both of Indianapolis, for the State.

GEMMILL, J.

Appellant was prosecuted upon an affidavit containing two counts, alleging violations of the Prohibition Law. Count 1 charged appellant with unlawfully manufacturing intoxicating liquor. Acts 1923, c. 23, p. 70, § 1. And count 5 charged her with unlawfully maintaining and assisting in maintaining a common nuisance. Acts 1917, c. 4, p. 25, § 20. The trial was by jury, and she was found guilty as charged in the first count. From the judgment rendered on the verdict, she has appealed. The only assignment of error relied upon is that the court erred in overruling her motion for a new trial. By this motion the sufficiency of the evidence, the giving of certain instructions, and the admission of some of the evidence are questioned.

[1][2] Appellant excepted to instruction No. 7, given by the court on its own motion. Part of the instruction reads as follows:

“The court further instructs you that there has been something said by both sides in this case in regards to the common–law wife. The court instructs you that there has no evidence been introduced in this case at all that this defendant is the common law wife of John Wiggens or any other person, or that she is the wife of John Wiggens or any other person. So the jury is instructed that they are not to consider that proposition at all, because that issue in the law does not enter into this particular case. *** And the common law wife or common law husband has nothing to do with the issues in this case whatever.”

It was the duty of the court to present to the jury the issues in the case. The jury must form their conclusions as to the facts solely from the evidence admitted in the trial. In 1 Randall's Instructions to Juries, § 1, it is said:

“*** Where the evidence is of such a character as may easily lead to the raising of a false issue, the court should guard against such an issue by appropriate instructions.”

One of the principal benefits to be derived from a charge to the jury is the elimination of irrelevant matters and causes of action or allegations, as to which no evidence has been offered, so that the jury will clearly understand the issues to be decided. Irvin v. Southern Ry. Co. (1913) 164 N. C. 5, 80 S. E. 78. In the instant case, the court evidently believed that a false issue had been raised during the trial, not by the evidence but by statements of the attorneys on each side. What was said on the subject mentioned in the instruction “by both sides,” is not set out in the record; but it is not claimed that the statement of the court in regard thereto was not true. An instruction which assumes that there is no evidence to establish a particular fact is not erroneous if such is the case. 14 R. C. L. 748, § 18, and cases cited. A careful examination of all the evidence shows that there was no evidence on the subject of the part of the instruction quoted. Appellant insists that this instruction was calculated to deprive her of the presumption of innocence with which the law clothes her, and that same was an insinuation that she was guilty of reprehensible and immoral conduct, and same was calculated to disgrace her in the minds of the jury and to prejudice and bias the jury against her. She proved by her sister, who was her only witness, that she had been the housekeeper for John Wiggens for 8 or 10 years and that she was paid for her services. This instruction can be construed as favorable to the defendant and as protective of her rights against what was said in the presence of the jury, about which there was no evidence. The objections made to this instruction are not well taken. The court was justified in giving same, and no error resulted therefrom.

[3] Part of instruction No. 14, which was the last of the instructions given by the court on its own motion, and also objected to, is as follows:

“The court instructs you that there are three verdicts that could be found in this case. You could do this, if the evidence should warrant it beyond a reasonable doubt, you could find the defendant guilty of the first count of the affidavit or you could find the defendant guilty of the fifth count of the affidavit if the evidence so warrants it beyond a reasonable doubt, and you can find the defendant guilty of both counts of the affidavit, the first and the fifth, if the evidence warrants it beyond a reasonable doubt, or you could bring in a general verdict, that would be more than three verdicts—you could bring in a general verdict and not allege or say in the verdict what count you find her guilty of, if the evidence warrants it beyond a reasonable doubt, or you can find the defendant not guilty.”

The remainder of the instruction contained forms of verdicts that could be returned in case of conviction on first count, on fifth count, on the affidavit, and in case of acquittal. Appellant says that by this instruction the jury was first told that they could return three verdicts, and later therein there was a reference to a general verdict which the court said “would be more than three verdicts,” and that because of said statements the instruction was contradictory and misleading. The first part of the instruction was not clear and cannot be commended, but, as the jury found the defendant guilty on only one count of the affidavit, and followed the instruction in regard to verdict thereon, said verdict being based on ample evidence, it seems evident that they were not misled and did not...