Hutchins v. State

• Decision Date: 23 December 1898
• Docket Number: 18,527
• Citation: 52 N.E. 403,151 Ind. 667
• Parties: Hutchins v. The State
• Court: Indiana Supreme Court

52 N.E. 403

151 Ind. 667

Hutchins v. The State

No. 18,527

Supreme Court of Indiana

December 23, 1898

From the Steuben Circuit Court.

Affirmed.

Woodhull & Gilbert and H. L. Hutson, for appellant.

William L. Taylor, Attorney-General, and Merrill Moores, for State.

OPINION

McCabe, J.

The appellant was convicted, over his motion for a new trial, on an information charging him with burglary and larceny. Error is assigned by appellant on the action of the circuit court in overruling his motion for a new trial.

It is first contended under that motion that the court erred in giving the fourth instruction asked by the State. The objection to the instruction is that it attempts to state the elements of the crime of burglary, concluding with a direction to find the defendant guilty if all of those elements are established beyond a reasonable doubt. The objection to the instruction is that it does not require the defendant to have any connection with the crime in order to his conviction. But in order properly to understand instruction four, it must be read in connection with instruction three of the same series. Indeed, the two instructions should be read as one single instruction. The two instructions read as follows: "No. 3. The first count of the information charges the defendant now on trial with having at this county and State, upon the 5th day of December in the year 1896, unlawfully, feloniously and burglariously, in the night-time, broken and entered into the storehouse of Alphonso M. Caswell and Almarion A. Caswell with the unlawful and felonious intent to then and there in said storehouse take, steal, and carry away certain articles and property described in the first count of the information and alleged as being the personal goods and chattels of the said Alphonso M. Caswell and Almarion A. Caswell. No. 4. Among the ingredients of the offense charged in the first count of the information are: (1) That said storehouse was broken and entered into; (2) that said storehouse was broken and entered into in the night time; (3) that the breaking and entering into said storehouse occurred in the county of Steuben in the state of Indiana; (4) that said storehouse was broken and entered into within the last two years; (5) that the breaking and entering into said storehouse was done with the unlawful and felonious intent to commit a felony by then and there in said storehouse unlawfully and feloniously taking, stealing, and carrying away the goods, property and chattels described in said indictment, or some portion of them. And, gentlemen of the jury, if you find all these ingredients exist beyond a reasonable doubt, then you should find him guilty as he stands charged in the first count of the information." The particular objection to this instruction is that it authorizes the jury to convict the defendant without any proof that he was the person who perpetrated the crime, the elements of which are set forth in the instruction. That contention would be correct, and ought to be upheld, if the instruction stood alone. This fourth instruction is very awkwardly drawn, and, standing alone, cannot be upheld because it is incomplete. But it must be construed along with instruction three of the same series just preceding it, because the first is also incomplete in the absence of instruction four. It is well settled that instructions must be considered and construed with reference to each other, and as an entirety, and not separately and in dissected parts; and if the instructions as a whole correctly and fairly present the law to the jury, even though some particular one, standing alone, would be erroneous, it affords no ground for reversal. Newport v. State, 140 Ind. 299, 39 N.E. 926; Shields v. State, 149 Ind. 395, 406, 49 N.E. 351, and cases cited.

But in the first line of instruction four, it is said: "Among the ingredients of the offense charged in the first count," etc. The inquiry arises: What was the offense charged in the first count? The preceding instruction tells. It says the first count charges the defendant now on trial with having committed the crime the elements of which are enumerated in the fourth instruction. Therefore, when the court, concluding the fourth instruction, says to the jury, "If you find all these ingredients exist beyond a reasonable doubt you should find the defendant guilty as he stands charged in the first count of the information," it evidently had reference to the same crime spoken of in the preceding instruction three, and that was the burglary charged against the defendant. The elements or ingredients described in the instruction could not exist without an actor or perpetrator. And the instruction, while inexcusably defective, clearly had reference to some actor in doing the things which it denominates the ingredients of the crime. And, when the two instructions are taken together, there can be no doubt that the actor or perpetrator intended and meant in the fourth instruction was the defendant then on trial, and that, when these ingredients or acts were established beyond a reasonable doubt, the defendant should be convicted, because his acts are referred to as constituting the ingredients or elements of the crime of burglary charged.

It is next urged, under the motion for a new trial, that the circuit court erred in giving instructions seven, eight, ten, thirteen, fourteen, and thirty-one asked by the State. Appellant admits that said instructions are correct statements of the law in the abstract, but it is contended that they are not applicable to the evidence. We think otherwise.

The next reason urged in support of the motion for a new trial is certain alleged misconduct of the jury while in the jury room, deliberating upon their verdict, prejudicial to the rights and interest of the defendant. The only proof of such misconduct is an affidavit of the defendant's attorney setting forth the fact that such misconduct of the jury took place in the jury room while they were deliberating upon their verdict, and that the affidavit was made on information and belief. The Attorney-General, on behalf of the State insists that such affidavit furnishes no legal proof of the alleged misconduct, and hence cannot be considered. It certainly makes but little difference whether an affidavit of an outsider, charging misconduct of the jury in the jury room, states that it is made on information and belief, or is silent as to the source of affiant's belief. As no persons other than members of a jury can lawfully be in their room while they are deliberating upon their verdict, an affidavit by any person other than a member of such jury, stating that they while so deliberating in their room have been guilty of misconduct, without any statement as to the source of affiant's knowledge, implies that such knowledge must have been derived from some one or more of the members of the jury, because otherwise the court must presume that some one has violated the law by admitting an unauthorized person into the jury room while the jury is deliberating on their verdict. But the presumption of law is that everybody has obeyed the law until the contrary is made to appear. In Stanley v. Sutherland, 54 Ind. 339, defendant made an affidavit in support of the ground of his motion for a new trial charging the jury with misconduct while deliberating on their verdict in the jury room, the affidavit concluding with the words "as affiant believes." Worden, C. J., speaking for this court in that case, at page 356, said: "The affiant does not state how he obtained information of the alleged misconduct of the jury. It is not to be supposed that he was in the jury room, and it would probably do him injustice to suppose that he was furtively hovering around, outside, listening to the deliberations of the jury. If the information came to him from the bailiff in attendance upon the jury, it seems to us that the affidavit of the bailiff ought to have been filed. If it came to him from some of the jurymen, it could not be received, for it has long been settled in this State that the affidavits of jurors cannot be received to impeach their verdict; much less could their statements be received at second hand. The affidavit may have been true, as the affiant believed, and yet the information may have been derived from some of the jurors, whose affidavits could not have been received. Without determining what would be the effect of the alleged misconduct of the jury, if legally established, we are of opinion that the court committed no error in overruling the motion on the affidavit." The supreme court of California decided the same question the same way. People v. Williams, 24 Cal. 31. That court on p. 40 in that case said: "It does not appear, except by the affidavit of the prisoner, upon information and belief merely, unsupported by any other evidence, that it even came to the knowledge of the jury that the obnoxious papers were in the room where the jury were deliberating. It is not to be presumed that the jurors violated their duty by hunting up and reading evidence not given to them in the progress of the trial in open court under the sanction of the judge. The presumption is that they performed their duty in accordance with the oath which they had all taken before entering upon the trial of the case. To overthrow this presumption there must be some direct positive testimony tending to show misconduct on the part of the jurors in this particular. It is not enough that this objectionable matter was inadvertently left in the room, with other books and papers, where the jury might by chance have found it. There must be some positive testimony by some person, who has knowledge of the facts which he states, showing that the jurors, or some...