Kocher v. State
| Decision Date | 22 April 1920 |
| Docket Number | No. 23661.,23661. |
| Court | Indiana Supreme Court |
| Parties | KOCHER v. STATE. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Grant County; J. F. Charles, Judge.
George Kocher was convicted of unlawfully keeping intoxicating liquors with intent to sell, and he appeals. Affirmed.
Van Atta & Clawson, of Marion, for appellant.
Ele Stansbury and A. B. Cronk, both of Indianapolis, for the State.
Appellant was charged by affidavit in two counts with violating sections 4 and 15, Acts 1917, p. 15. He was tried in the Grant circuit court before a jury, and convicted of keeping intoxicating liquors with intent to sell, etc., contrary to section 4, and sentenced to pay a fine of $100 and to imprisonmentin the county jail for a period of 30 days.
Appellant's motion for a new trial was overruled, and this ruling is the only error here assigned.
[1] Instruction No. 2 tendered by appellant was modified by the court and given as modified. Appellant insists that the court erred, first, in modifying the instruction, and, second, in giving the instruction as modified. The instruction tendered applied to the first count of the affidavit and the one on which appellant was convicted. That part of the instruction about which there is any contention as tendered read, “It is not unlawful for a person to have in his possession intoxicating liquor,” etc. The court wrote into the body of the instruction the word “Necessarily,” thus modifying it to read that “it is not necessarily unlawful for a person to have in his possession intoxicating liquor,” etc., then gave the instruction as modified.
The request that the jury be instructed in writing, as well as the request for special instructions which were reduced to writing and tendered to the court, were all done in compliance with our statute. Section 2136, Burns 1914, cls. 5 and 6.
Clause 6, which is the only legislative expression on the subject of the modification of instructions in a criminal case, expressly prohibits the court from orally modifying instructions. In civil actions we have a statute fully covering this subject (section 561, Burns 1914), but that statute has been held not to apply to criminal cases. Stephenson v. State, 110 Ind. 358, 373, 11 N. E. 360, 59 Am. Rep. 216;Donavan v. State, 170 Ind. 123, 83 N. E. 744;Guy v. State, 37 Ind. App. 691, 77 N. E. 855.
Since we have no statute on the question as to the authority of the court to modify an instruction as was done in this case, it would seem that the recognized practice in such cases, and the omission of the Legislature to act, except as herein pointed out, must be regarded as exceedingly persuasive of a conclusion sustaining the right of the court to modify special instructions when done in writing, and we so hold. However, in the case of Guy v. State, supra, by reference to the record in that case, it will be observed that this precise question was before the court and the same objection urged as here; but the court sustained the action of the trial court in modifying the instruction. 16 C. J. p. 1067; Ewbank's Crim. Law, § 513.
[2][3] Our attention will next be directed to the effect of the instruction as modified. It is true that the mere possession of less than one gallon of intoxicating liquor is not unlawful, but it may be unlawful if kept with the intent of disposition contrary to law. So that, when the court told the jury that the possession of such a quantity of intoxicating liquor was not “necessarily” unlawful, the inference would follow that it might be, which is true, if coupled with an intent to dispose of it, in violation of law.
From a consideration of the entire series of instructions given to the jury, we are convinced that it could not have been misled by the questioned modification. Of course, a defendant on trial has a right to insist that the court shall instruct the jury on all legal questions necessary to reach a true verdict. This is all the law guarantees and all that he had a right to expect. Hence if the instructions given by the court on request and those given on its own motion thus informed the jury, no reversible error can be predicated on a refusal to give special instructions, although they may announce correct principles of law. Ginn v. State, 161 Ind. 292, 68 N. E. 294;Rains v. State, 137 Ind. 91, 36 N. E. 532.
[4] It is next insisted that the court erred in orally modifying appellant's tendered instruction No. 4, by orally reading into it the word “not” after the word “of” and before the word “less” in the sentence following:
“The fact, if you find from the evidence that it is a fact, that the defendant was found in possession of less than a gallon of intoxicating liquor. ***”
Appellant's bill of exceptions by which he seeks to present this question contains two affidavits stating that the instruction was so orally modified, and showing a reasonable excuse for not calling the court's attention to that fact at the time the instruction was read. These affidavits were filed in the court below in support of appellant's motion for a new trial.
The certificate of the trial judge in this particular is as follows:
“And instruction No. 4, tendered by the defendant and...
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