Robey v. State
Citation | 454 N.E.2d 1221 |
Decision Date | 24 October 1983 |
Docket Number | No. 482S153,482S153 |
Parties | Timothy L. ROBEY, Appellant, v. STATE of Indiana, Appellee. |
Court | Supreme Court of Indiana |
Malcolm G. Montgomery, Evansville, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant, Timothy L. Robey, was convicted following a trial by jury of the crime of voluntary manslaughter, a class B felony, in the beating and kicking death of a man with whom he shared quarters. He was given an eighteen year sentence, and now appeals on two grounds, namely: (1) that the trial court erred in refusing to give a defense instruction regarding the presumption of innocence and the jury's duty to reconcile the evidence upon the theory of his innocence, and (2) that the trial court abused its discretion in choosing eighteen years as a sentence.
Appellant tendered, and the trial judge refused to give, Defense Jury Instruction Number Eight which reads as follows:
An instruction of this character which advises the jury that the presumption of innocence prevails until the close of the trial, and that it is the duty of the jury to reconcile the evidence upon the theory of the defendant's innocence if they could do so, must be given if requested. Farley v. State, (1891) 127 Ind. 419, 26 N.E. 898; Simmons v. State, (1979) 179 Ind.App. 342, 385 N.E.2d 225. Appellant contends that the instructions actually given, unlike his own, were deficient in that they did not mention the duty of the jury to reconcile the evidence upon the theory of his innocence, if they could do so.
In answer to this contention the Attorney General has set forth in full in the State's brief, the trial court's own Instructions 8, 18, and 20 for consideration of the Court in support of its contention that such instructions actually given adequately stated the law regarding the aforesaid duty of the jury. Of particular salience are the following statements within these instructions:
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...the evidence upon the theory of the defendant's innocence if they could do so, must be given if requested.” Id. (quoting Robey v. State, 454 N.E.2d 1221, 1222 (Ind.1983) (citing Farley v. State, 127 Ind. 419, 26 N.E. 898 (1891); Simmons v. State, 179 Ind.App. 342, 385 N.E.2d 225 (1979))). T......
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