From
Randolph Circuit Court; Theordore Shockney, Judge.
Prosecution
by the State of Indiana against Enoch Pierson. From a
judgment of conviction, the defendant appeals.
Reversed.
H. J
Paulus, George H. Ward, John Burns, Joseph Burns and Harry E
Roberts, for appellant.
Ele
Stansbury, Newman T. Miller and Dale F. Stansbury, for the
state.
OPINION
Willoughby, J.
This is
an appeal from a judgment of conviction upon an affidavit
charging appellant, together with three others, with the
crime of conspiracy to commit arson. Appellant upon his own
motion was granted a separate trial from his codefendants
and the cause was submitted to a jury for trial on the issue
formed by the plea of not guilty to the charge in the
affidavit. The only error assigned is that the court erred in
overruling appellant's motion for a new trial. In
appellant's motion for a new trial he insists that the
court erred in giving, over objection of appellant, certain
instructions of its own motion.
The
court of its own motion gave the following instruction, No.
20, over the objection of appellant: "The good character
of the accused, when satisfactorily established by competent
evidence, is an ingredient which ought always
to be considered by the jury, together with the other facts
and circumstances in the case, in determining his guilt or
innocence. You are therefore instructed that the evidence of
good character of the defendant in this cause and the
evidence of his bad character, if any is shown, is competent
to be taken into consideration by you in determining his
guilt or innocence. The good character of the accused, when
satisfactorily established, may, of itself, create such
reasonable doubt in the minds of the jury as would justify an
acquittal, unless the facts and circumstances point so
unerringly to his guilt that, notwithstanding his good
character, the jury can say, beyond a reasonable doubt, that
he is guilty."
And in
instruction No. 26, given by the court of its own motion over
appellant's objection, the court said: "The court
also instructs you that evidence has been permitted to be
introduced touching upon the bad moral character of the
defendant in the community in which he lived. This evidence
is competent upon behalf of the state, and if the jury
believe from the evidence that prior to the time it is
alleged that the crime was committed the defendant bore a bad
reputation in the community in which he lived for morality,
then this is a fact proper to be considered by you, together
with all the other facts proven in the case, in determining
the guilt or innocence of the defendant, and after a careful
consideration of all the evidence in this case, including
that pertaining to his previous good character, if such
evidence has been introduced, as well as the evidence with
reference to his previous bad character, if such evidence has
been introduced, the jury entertain any reasonable doubt of
the defendant's guilt he cannot be convicted. And, also,
if you find from the evidence that on and prior to the 10th
day of July, 1916, either of the codefendants,
Frederick Drake, Elisha Roberts or Calvin Lincoln were
persons who bore a bad reputation for honesty and integrity,
or for morality, this fact or these facts, if such facts
appear in the evidence, should be considered by you, along
with all the other evidence in the cause in determining the
guilt or innocence of the defendant, Pierson, but you will
not consider any specific offense alleged to have been
committed by either one of the other defendants as in any way
applying to the conduct of this defendant, except in so far
as it applies, if it does apply, to the character of the
defendant on trial."
Instruction
No. 27, given by the court of its own motion over objection
of appellant, is as follows: "Evidence has been
permitted to go to you concerning the whole period of the
defendant's life, up to the alleged commission of the
alleged
offense. This evidence has been proper and must be considered
by you, in weighing the testimony on the question of the
defendant's guilt or innocence. It was permitted for the
purpose of showing what manner of man the defendant has been
during all this period, that you might consider the question
of whether or not such a man would be guilty of such an
offense as charged in the affidavit, and also that you might
consider his own testimony, and the truthfulness of the same,
and in determining his guilt or innocence you will at all
times have in your mind what manner of man this defendant has
been shown to be by the evidence touching on that question.
It will be also your duty to consider the evidence, if there
is any evidence on that subject, tending to show the
reputation of the defendant on trial for morality in that
community."
Appellant
claims that each of said instructions Nos. 20, 26 and 27 is
erroneous and harmful to appellant for the reasons: (1) That
instruction No. 20 charged the jury that it
was competent for them to take into consideration evidence of
the defendant's bad character in determining his guilt or
innocence when the law requires that the evidence of bad
character of the defendant could only be considered as to his
credibility as a witness and not as to his guilt, and the
evidence of the general moral character of defendant is
admissible only as going to his credibility as a witness and
not as to whether he did, or did not, commit the crime with
which he is charged. Keyes v. State (1890)
122 Ind. 527, 23 N.E. 1097. (2) That instruction No. 26 told
the jury that, if the defendant bore a bad reputation in the
community in which he lived for morality, then that fact was
proper to be considered by the jury in determining the guilt
or innocence of defendant Pierson; that it instructed the
jury that it could consider any specific offense committed by
defendant Pierson as going to his guilt. There was some
evidence that Frederick Drake, one of the codefendants, not
upon trial, had been arrested for selling liquor in violation
of law, and the court, in this instruction, tells the jury
that if specific offenses committed by the other defendants
in any way apply to this defendant,...
