Purdy v. State, 377S224

• Citation: 267 Ind. 282,369 N.E.2d 633
• Decision Date: 01 December 1977
• Docket Number: No. 377S224,377S224
• Parties: Daniel C. PURDY and James A. Purdy, Appellants, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 633

369 N.E.2d 633

267 Ind. 282

Daniel C. PURDY and James A. Purdy, Appellants, v. STATE of Indiana, Appellee.

No. 377S224.

Supreme Court of Indiana.

Dec. 1, 1977.

Harry Dudley Miller, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Charles D. Rodgers, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellants Daniel and James Purdy were both found by a jury in Marion Criminal Court to be guilty of first-degree murder. They were sentenced to life imprisonment on December 22, 1976.

Among the issues submitted for us for review is the allegation that the trial court erred, as a matter of law, by refusing to read both the preliminary instructions and the final instructions to the jury as requested by appellants. We hold that the trial court committed reversible error in this regard, and therefore will not discuss the other issues raised.

After the jury was sworn, the court indicated to the parties that he intended to waive the reading of the court's preliminary instructions to the jury. He stated that he intended to send these instructions to the jury room during deliberations. There was an objection to this procedure and a request that the preliminary instructions be read to the jury before the deliberations, but this motion was overruled. After final arguments of counsel, the court refused to read the final instructions to the jury, over objections of appellants. Instead, he sent both the preliminary and final instructions to the jury room with the jury, stating to them and instructing them that the foreman of the jury was to read and discuss each instruction with them. The court further instructed the jury that if they had any questions about the instructions, they were to report it to the court, and the court would discuss it and explain it to them.

The trial court's duty to give both preliminary and final instructions is set out in Ind. R. Tr. P. 51. As to preliminary instructions, § A of the rule provides as follows:

"(A) General instructions at commencement of action. When the jury has been sworn the court shall instruct in writing as to the issues for trial, the burden of proof, the credibility of witnesses, and the manner of weighing the testimony to be received. Each party shall have reasonable opportunity to examine such instructions and state his specific objections thereto out of the presence of the jury and before any party has stated his case. The court may of its own motion and, if requested by either party, shall reread to the jury all or any part of the instructions so given along with the other instructions given to the jury at the close of the case. The parties shall be given reasonable opportunity to submit requested instructions prior to the swearing of the jury, and object to instructions requested or proposed to be given."

As to final instructions, § B of rule 51 states:

"(B) Instructions after arguments On court's own motion Request for written instructions. After argument the judge shall instruct the jury as to the law upon the issues presented by the evidence. Such instructions given by the court of its own motion shall be in writing when any party so requests. This request must be made before the commencement of the argument."

Further, the Indiana legislature has directed trial courts in their order of proceedings in criminal cases in Ind. Code § 35-1-35-1 (Burns 1975). Final instructions to the jury are made after final arguments, as discussed in the fifth section of this statute:

"Fifth. The court must then charge the jury, which charge, upon the request of the prosecuting attorney, the defendant or his counsel made at any time before the commencement of the argument, shall be in writing and the instructions therein contained numbered and signed by the court. In charging the jury the court must state to them all matters of law which are necessary for their information in giving their verdict. If he present the facts of the case he must inform the jury that they are the exclusive judges of all questions of fact, and that they have a right, also, to determine the law."

The question presented is what discretion the trial judge has, in regard to his communication with and management of the jury, in the above procedures. This has been a recurring question in a long line of cases, all of which have reaffirmed the same basic law and principle.

Early in the history of Indiana law, the Supreme Court stated in Hall v. State, (1856) 8 Ind. 439, at 443-44:

"The instructions to the jury from the Court were in writing, and as a practice, perhaps not very judicious were taken to the consultation room by the jury . . . . The right of the Court to communicate with the jury during their deliberations upon a cause, to withdraw from their consideration erroneous instructions, and to give additional ones, is undoubted. Jones v. Van Patten, 3 Ind. 107. But the question is, where and how must this be done? Archbold, in his Criminal Law, (vol. 1, p. 171) says that, 'after the jury have retired, they may come back for the advice or opinion of the court upon any point; or they may request the judge to read over to them again any particular part of the evidence; or they may get the court to ask any particular question of the witnesses. All this, however, must be done in open court. See, also, 2 Swan's Pr. 917, and Hogg v. State, 7 Ind. 551."

In Smith v. McMillen, (1862) 19 Ind. 391, the principles of jury instruction discussed in Hall were cogently restated. In holding that it was error for the trial court to send written instructions to the jury room without the consent of the parties, and that the jury should receive their charge and all subsequent instructions or explanations touching their duties in open court in the presence of the parties, the Supreme Court stated:

"The principle is, that the jury shall take the law from the Court. The mode in which the Court communicates with the jury is by addressing them in open Court. The jury take the law from the Court through the ear. By so doing, they generally stand upon equality, because none but men with hearing ears are competent jurors. In the juryroom, then, each depends upon his own recollection of the instructions, and upon the impression they made upon him for their meaning, their construction; and, this standing upon an equality, if they differ, they should come into Court, and, in presence of the parties, let the Court be interpreter of its own instructions. But if; instead of this being done, the court sends the written instructions to the jury, inasmuch as jurors are not upon equality in their ability to read and interpret writing, it puts it in the power of the sharp ones on the jury to read, and become the interpreters for the Court, and mislead their less skillful fellow-jurors. We think...