Steinbarger v. State

• Decision Date: 06 December 1948
• Docket Number: 28470.
• Citation: 82 N.E.2d 519,226 Ind. 598
• Parties: STEINBARGER v. STATE.
• Court: Indiana Supreme Court

82 N.E.2d 519

226 Ind. 598

STEINBARGER v. STATE.

No. 28470.

Supreme Court of Indiana

December 6, 1948

Appeal from Jackson Circuit Court; Grant Rogers Special judge.

Thomas H. Branaman, of Brownstown, for appellant.

Cleon H. Foust, Atty. Gen., Frank E. Coughlin, 1st Deputy Atty Gen. and Merl M. Wall, Deputy Atty. Gen., for appellee.

GILKISON, Judge.

In the trial court apellant was charged by affidavit with the crime of possession of burglary tools with intent to commit burglary, under § 10-703, Burns' 1942 Replacement. He was further charged with being an habitual criminal under § 9-2207, Burns' 1942 Replacement.

The cause was put at issue by a plea of not guilty. A trial by jury resulted in a verdict reading as follows:

'We the jury, find the defendant, Clyde Steinbarger guilty of the crime alleged in the affidavit, viz: Burglary-Possession of tools by convict and that he has been previously twice convicted, sentenced and imprisoned in some penal institution for felonies, and that his true age is--years.'

After verdict and before judgment was rendered defendant filed his motion for discharge for the reason that 'the verdict of the jury does not find the defendant guilty of any criminal offense alleged in the affidavit herein.' The motion was followed with a memorandum. It was overruled.

A motion for new trial timely filed was overruled.

Defendant then filed a motion objecting to the rendition of any judgment of conviction on the verdict with memorandum. It was overruled. Judgment was then rendered as follows:

'It is considered and adjudged by the court that the defendant be, and he hereby is, sentenced to imprisonment in the Indiana State Prison for the term of not less than 2 nor more than 14 years for the offense of possession of burglary tools with the intent to commit the crime of burglary, he having been previously convicted of a felony;

'It is further considered and adjudged by the court that the defendant be, and he is, hereby sentenced to imprisonment in the Indiana State Prison for and during life as an habitual criminal.'

Defendant then filed a motion to modity the judgment by striking therefrom that part sentencing him to the State Prison for life as an habitual criminal, with memoranda and authorities. It was overruled.

By his motion for new trial and his assignment of errors appellant presents alleged errors as follows:

(1) Giving court's instruction No. 9 to the jury, as follows:

'The crime of possession of burglary tools by a person previously convicted of a felony, is defined by statute as follows:

"If any person previously convicted of a felony be found having in his possession any burglar tools or implements with intent to commit the crime of burglary, such person shall be deemed guilty of a felony, and on conviction thereof shall be imprisoned not less than two (2) years nor more than fourteen (14) years, and the possession of such tools or implements shall be prima facie evidence of the intent to commit burglary."

(2) Giving State's tendered instruction No. 4, as follows:

'Any fact necessary to be proved in this case may be proven by direct evidence of eye witnesses or by circumstantial evidence, or by both circumstantial evidence and direct evidence of eyewitnesses. Circumstantial evidence is to be regarded by the jury in all cases. When it is strong and satisfactory the jury should so consider it, neither enlarging or belittling its force. It should have its just and fair weight with the jury and if when it is all taken as a whole and fairly and candidly weighed it convinces the guarded judgment, the jury should act upon such conviction. You are not to fancy situations or circumstances which do not appear in the evidence, but you are to make such just and reasonable inferences as the guarded judgment of a reasonable man ordinarily would make under like circumstances.'

(3) In overruling appellant's motion for discharge.

(4) In overruling appellant's motion to modify the judgment.

(5) That the verdict is contrary to law.

We shall consider the alleged errors in the order stated.

(1) With respect to that part of the court's instruction 9 as follows: '* * * and the possession of such tools or implements shall be prima facie evidence of the intent to commit a burglary.'

§ 19, Art. 1 of the Indiana Constitution provides: 'In all criminal cases whatever, the jury shall have the right to determine the law and the facts.'

Under this constitutional provision the jury is the sole judge of both the law and the facts in the case. The courts may not usurp or infringe this fundamental right. The right may not be modified or minimized by instructions or otherwise. Schuster v. State, 1912, 178 Ind. 320, 323, 99 N.E. 422; Hubbard v. State, 1925, 196 Ind. 137, 143, 147 N.E. 323; Landreth v. State, 1930, 201 Ind. 691, 698, 171 N.E. 192, 72 A.L.R. 891; Wolf v. State, 1926, 198 Ind. 261, 267, 151 N.E. 731; Vaughn v. State, 1939, 215 Ind. 142, 148, 19 N.E.2d 239; Burris v. State, 1941, 218 Ind. 601, 34 N.E.2d 928; Gavit Ind. Plead. & Prac. Vol. 2 § 395, p. 2253.

It follows naturally and necessarily that the legislature may not infringe this fundamental right of the jury in criminal cases. Art. 1, § 19, supra, is an effective and absolute barrier to an attempted infringement. The quoted part of the court's instruction No. 9 is an invasion of the province of the jury. It was reversible error to give this instruction. Jacobs v. State, 1936, 210 Ind. 107, 109, 1 N.E.2d 452; Walter v. State, 1935, 208 Ind. 231, 237 et seq., 195 N.E. 268, 98 A.L.R. 607; Gillian v. State, 1935, 207 Ind. 661, 670, 194 N.E. 360; Dedrick v. State, 1936, 210 Ind. 259, 278, 2 N.E.2d 409; Powers v. State, 1933, 204 Ind. 472, 477, 184 N.E. 549, 86 A.L.R. 166. See also Union Mutual Life Insurance Company v. Buchanan, 1884, 100 Ind. 63, 73; Muncie Pulp Co. v. Kessling, 1906, 166 Ind. 479, 489, 76 N.E. 1002, 9 Ann.Cas. 530 and cases cited. McCague v. New York, C. & St. L. R. Co., 1947, 225 Ind. 92, 71 N.E.2d 569, 578.

(2) By state's tendered instruction No. 4, with respect to circumstantial evidence, the jury was told:

'It should have its just and fair weight with the jury and if when it is all taken as a whole and fairly and candidly weighed it convinces the guarded judgment, the jury should act upon such conviction. You are not to fancy situations or circumstances which do not appear in the evidence, but you are to make such just and reasonable inferences as the guarded judgment of a reasonable man ordinarily would make under like circumstances.' (Our italics.)

An instruction similar to this was allowed, in Wolf v State [198 Ind. 267, 151 N.E. 733], supra, on the theory that: '* * * it obviously was intended for defendant's benefit, and it does not appear that it could have harmed him in any way', and that counsel cited no authorities or otherwise offered the court assistance in determining that the giving of the instruction was cause for reversal. The value of these reasons for allowing the instruction we leave for the careful consideration of lawyers and jurists. We are unable to understand the meaning of the expression 'guarded judgment', since it is probable that every judgment is reasonably guarded within the capacity of the person making it. There is no reason for assuming that the use of the word 'guarded' raises the judgment to be exercised in the least from what it would have been if this adjective had not been used. But the instruction goes further in explanation and says: 'but you are to make such just and reasonable inferences as the guarded judgment of a reasonable man ordinarily would make under like circumstances.' By this instruction the law of reasonable doubt, Burns' 1942 Repl. § 9-1806, is materially modified and to some extent supplanted by another rule that is somewhat similar to the law applicable in determining the question of negligence in a tort action. This is error. The jury in a criminal case may not act upon evidence that convinces 'the guarded judgment'; nor may it be told by an instruction to make such inferences as the guarded judgment of a reasonable man ordinarily would make under like circumstances. On the contrary, to convict the evidence must be such as to...