Pritchard v. State

• Citation: 230 N.E.2d 416,248 Ind. 566
• Decision Date: 11 October 1967
• Docket Number: No. 30728,30728
• Parties: Margaret PRITCHARD, Appellant, v. The STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 416

230 N.E.2d 416

248 Ind. 566

Margaret PRITCHARD, Appellant, v. The STATE of Indiana, Appellee.

No. 30728.

Supreme Court of Indiana.

Oct. 11, 1967.

John B. McFaddin, Rockville, for appellant.

John J. Dillon, Atty. Gen., Michael V. Gooch, Deputy Atty. Gen., for appellee.

HUNTER, Chief Justice.

This is an appeal from a criminal action instituted and tried in the Parke Circuit Court before a jury. The appellant and her co-defendant husband, Palph Pritchard, were charged in an indictment in one (1) count with violation of § 350, ch. 169 of the Acts of the Indiana General Assembly (1905) Burns' Ind.Ann.Stat. § 10--3404 (1956 Replacement) defining the offense of murder in the second degree.

After trial the jury returned its verdict finding the appellant guilty of manslaughter and finding her co-defendant, Ralph Pritchard, not guilty of any charge.

The motion for new trial and assignment of error presents two (2) propositions for this Court to decide. One of the allegations of error presented by the appellant on this appeal is that the state's instruction No. 24 which reads as follows:

'The Court now instructs you that if you should find that Margaret Pritchard or Ralph Pritchard or either one of them were guilty of cruelty or neglect of Kathy Jean Pritchard and that as a result of such cruelty or neglect beyond a reasonable doubt Kathy Jean Pritchard did sicken, languish and die, then you shall find such defendant guilty of involuntary manslaughter.' (our emphasis)

was given by the court as a mandatory instruction. Said instruction was timely objected to and assigned as a specification of error in the appellant's motion for a new trial in the court below.

The appellant in his brief advances the proposition that the giving of such mandatory instruction is erroneous for the reason that it invades the province of the jury and is prejudicial to the appellant. In support of such contention the following citations of case law are advanced:

'This being a criminal case, the determination of the admissability of the evidence is a function alone of the trial court, but the weight of the evidence, the inferences to be drawn from the facts proved, and whether the defendant has violated the law are matters exclusively for the jury. Juskulski v. State (1933), 206 Ind. 503, 190 N.E. 423, citing Bryant v. State (1933), 205 Ind. 372, 186 N.E. 322; Sprague v. State (1932), 203 Ind. 581, 181 N.E. 587 and others.

In criminal cases, while the court may advise the jury as to the law and what facts are entitled to consideration on a given phase of the case, he may not direct a verdict if certain testimony is believed.' (our emphasis) Bryant v. State, supra; Sutherlin v. State (1897), 148 Ind. 695, 48 N.E. 246; Hudelson v. State (1884), 94 Ind. 426.

It would seem to us that in a consideration of mandatory instructions in criminal cases we are inevitably drawn back to the language of Art. 1, § 19 of the Constitution of the State of Indiana which reads as follows:

'Jury in criminal cases--Right to determine law and facts.--In all criminal cases whatever, the jury shall have the right to determine the law and the facts.'

We are cognizant of the rule as stated in Ewbank's Indiana Criminal Law, Symmes Ed., § 421, p. 264 which reads as follows:

'The court may give an instruction which enumerates all the elements of the offense charged, and it may tell the jury that if such facts are found beyond a reasonable doubt it is their duty to convict, but if any essential element is omitted from such a mandatory instruction, it constitutes reversible error.' McDonough v. State (1961), 242 Ind. 376, 175 N.E.2d 418; Flowers v. State (1956), 236 Ind. 151, 139 N.E.2d 185.

A careful review of the case of McDonough v. State, supra, cited in support of said rule fails to reveal its applicability to the question here raised. The thrust of the McDonough opinion is to reaffirm the rule that the jury is the sole judge of the credibility of a witness and that the court has no right to invade that province. It does not bear by direct reference on the constitutional right of the jury to determine the law.

In the case of Flowers v. State, supra, that case was directed primarily to the burden of proof necessarily incumbent upon the State where a plea of not guilty by reason of insanity is an issue in the cause.

In the McDonough case, this Court held that the appellant's tendered instructions numbered 2 and 4 would have required the trial court to instruct the jury on the testimony of a specific witness and would have required the jury to find that it could not believe any testimony given by such witness. This court in the McDonough case therefore approved the general instruction given by the court which reads as follows:

'If you should believe from the testimony in this case that any witness or witnesses have wilfully and intentionally testified falsely to any material fact in the case, intending by such false testimony to mislead and deceive as to the truth in the case, you may under such belief disregard the whole or any part of the testimony of such witness or witnesses, if, in your opinion, you are justified under your oath in so doing, and except in so far as the same may be corroborated by other credible testimony.'

And this Court then stated that the general instruction did not sufficiently cover the matter of the credibility of witnesses especially such a witness as Mogilner. On appeal this Court held that appellant's objections to the Court's refusal to give tendered instructions numbered 2 and 4 were not valid and could not be given to supplement the above general instruction for the reason that they were not proper and therefore were correctly refused by the trial court. The Court in said case stated:

'Both of these instructions seriously attacked the witness, Mogilner. This court stated in Nordyke v. State, 1938, 213 Ind. 243, 256, 11 N.E.2d 165, 171, '* * * The law has no theories concerning the credibility of witnesses, except that their credibility is to be determined by the jury. * * *"

The rule is well settled in this State that the jury is the sole judge of the credibility of a witness and the Court has no right to invade that province. Sparks v. State (1942), 220 Ind. 343, 347, 42 N.E.2d 40; Hammond v. State (1928), 200 Ind. 343, 344, 163 N.E. 262; Culley v. State (1923), 192 Ind. 687, 689, 138 N.E. 260. We construe the above cited cases as stating that an instruction in a criminal case is erroneous as invading the province of the jury to the extent that the Court would be intimating an opinion of the credibility of witnesses or the weight to be given to their testimony.

In the case of DeBoor v. State (1962), 243 Ind. 87, 182 N.E.2d 250, cited in support of the rule as announced in Ewbank's supra, the only element of said case considered or discussed by the Court in that opinion is recited as follows:

'Appellant's tendered instruction No. 43 is mandatory in nature. It does not contain a complete statement of the law upon the subject covered and for this reason it was properly refused.'

Therefore, it should be borne in mind that this was a comment upon a tendered instruction by the defendant that was mandatory in nature and did not involve an instruction tendered by the State that was mandatory in nature and under the rule of the presumption of innocence of the defendant in regard to a State's mandatory instruction, would have no applicability to the question presented in this appeal. For to say that a defendant's mandatory instruction which was refused properly by the court inferentially would give the right to the State to ask for a mandatory instruction on the facts and the law, to-wit: 'You shall find the defendant guilty' certainly would have to be construed as a invasion of the jury's right under the Constitution to find the facts and to determine the law.

Therefore it appears to us that the rule as stated in § 421, Ewbank's supra, dealing with mandatory instructions in criminal cases is not supported by the cases cited there and do not in any way uphold the rule that a mandatory instruction on the facts and the law that would require conviction are proper under any circumstances.

In § 416, Ewbank's supra, (1965--66 Supp.) under the general heading of JURY AS JUDGES OF LAW, the only and perhaps the leading case in Indiana, Beavers v. State (1957), 236 Ind. 549, 141 N.E.2d 118, does not support the right of a trial court to give a specific mandatory instruction on the facts and the law in the case. While in the Beavers case, it was stated that the U.S. Supreme Court had said that Indiana and Maryland today are the sole survivors of an archaic constitutional provision that a jury may determine the law in criminal cases it is nevertheless recognized and is still the constitutional provision in Indiana. 52 Harvard Law Review (1939) and the Notre Dame Law Review in 1949 pp. 356--66 recognize that Indiana is among the few states which cling to what is there termed an outmoded relic. It is nevertheless still the constitutional rule in Indiana.

In the Beavers case, instruction no. 12 given by the trial court read as follows:

'The Constitution of this state makes the jury the judge of the law as well as the facts. But this does not mean that the jurors may wilfully and arbitrarily disregard the law, nor that they make and judge the law as they think it should be in any particular case. It means that the jurors, under their oaths, should honestly, justly and impartially judge the law as it exists, and as it is found upon the statutes of our state, in each particular case. It does not mean that the jurors may so judge the law in any case as to make it null and void and of no force, but that they shall so judge the laws as to give them a fair and honest interpretation, to the end and to the effect that each and every law, in each and every case, may be fairly and honestly enforced. Any other interpretation of the law...