McGraw v. State

• Decision Date: 12 May 1978
• Docket Number: No. 1176S374,1176S374
• Citation: 375 N.E.2d 1099,268 Ind. 386
• Parties: James McGRAW, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1099

375 N.E.2d 1099

268 Ind. 386

James McGRAW, Appellant, v. STATE of Indiana, Appellee.

No. 1176S374.

Supreme Court of Indiana.

May 12, 1978.

Ernie S. Burke, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant McGraw was convicted by a jury in the Marion Criminal Court on April 20, 1976, of commission of a felony, robbery, while armed. He was sentenced to imprisonment for a determinate period of twelve years.

Appellant raises two issues to be reviewed by this court: (1) whether the trial court erred in giving its instruction on reasonable doubt, and; (2) whether the verdict is supported by sufficient evidence.

I.

Over objection of appellant, the trial court gave as preliminary instruction No. 5 the following instruction on reasonable doubt "A reasonable doubt is one which is based upon reason and common sense. It is a doubt which may reasonably arise from the evidence, or from the lack of evidence, or from a conflict of the evidence. It exists if you are uncertain of guilt, or if you can only guess or speculate as to guilt.

"On the other hand, reasonable doubt is not created by a lack of proof to an absolute certainty, for this is rarely possible. Nor does it arise from the mere possibility of error or mistake, or from the fact that you may find some doubt, because in any human activity there always exists the mere possibility of error or mistake, and you may always find some doubt if you look for it.

"You may find guilt beyond a reasonable doubt from all of the evidence if you are convinced that the defendant did commit the crime rather than probably did; if you are truly convinced of the defendant's guilt rather than only somewhat convinced; if you are convinced to a reasonable certainty rather than only fairly certain. If you are not so convinced of the guilt of the defendant, then you should return a verdict of not guilty.

"Either a verdict of conviction or acquittal must be unanimous."

Appellant tendered, as his instruction No. 1, an instruction on reasonable doubt which was refused by the court. It read as follows:

"At this point the Court desires to explain to you what is meant by the words 'reasonable doubt' and instruct you concerning the rule of law which requires that a person charged with the commission of a crime be proved guilty beyond reasonable doubt before he can be convicted.

"A reasonable doubt, as the words imply, is such a doubt as may reasonably arise from the evidence, or from the lack of evidence, or from a conflict in the evidence, on or concerning a given fact or issue.

"It is not a mere possibility of error or mistake that constitutes a reasonable doubt, for despite every precaution that may be taken to prevent it, there may be in all matters pertaining to human affairs a mere possibility of error.

"If each of you are so convinced as a whole, of the guilt of the defendant, that as prudent men and women you would feel safe to act upon such conviction in a matter of highest concern and importance to your own dearest and most important interests where there was no compulsion or coercion upon you to act at all, then you will have attained such degree of certainty as excludes reasonable doubt and authorizes conviction.

"If you are not so convinced by all the facts and circumstances in the evidence as a whole of the guilt of the defendant you should acquit."

The position of the appellant is that the court attempted to improve upon the accepted language of his instruction No. 1 by substituting language that was misleading, and thus failed to define reasonable doubt. It is true that appellant's instruction No. 1 represented the standard "boilerplate" definition of reasonable doubt which has been long and many times approved. This court was faced with a similar situation in Brown v. State (1977), Ind., 360 N.E.2d 830. In that case, the reasonable doubt instruction given by the court was as follows:

"A reasonable doubt is not a fanciful doubt. It is a doubt which arises from the evidence, the lack of evidence, or a conflict in the evidence. It is a doubt which would disturb the conscience of a resolute and decent person who is sincerely devoted to justice for everyone, without regard to his or her status in life or society."

The appellant in Brown also urged that the trial court erred by not giving the standard instruction, represented in the present case by defendant's instruction No. 1. This court held, however, that the omission of such language could not be considered reversible error. The reason given, as stated at 360 N.E.2d at 836, was that:

"This Court has long recognized that the term 'reasonable doubt' is not easily defined. See Siberry v. State (1892), 133 Ind. 677, 33 N.E. 681. While we think it wise to employ the language relied on by the Appellant, which has been accepted over a number of years, we do not think that it can be said that only that language will adequately instruct a jury."

We find the reasoning in Brown to be dispositive of the present issue. All of the elements of the definition of reasonable doubt are contained in the court's instruction No. 5, and the jury was properly and adequately instructed on the subject.

II.

Appellant next challenges the sufficiency of the evidence to support his conviction of commission of a felony, robbery, while armed. The record shows that on February 6, 1976, Donna Cook was in the office of the D & B Auto Sales, a used car business owned by herself and her husband. A lone, young black man came in the door and started to approach the counter. There was a large collie puppy in a cage in the office. The dog jumped up when the man came in. There was a conversation then between Mrs. Cook and the man, concerning the safety of entering the office and the ability of the dog to get out of the cage. Mrs. Cook...