Wilson v. State, 1--1175A196
| Decision Date | 20 April 1976 |
| Docket Number | No. 1--1175A196,1--1175A196 |
| Citation | 346 N.E.2d 279,169 Ind.App. 33 |
| Parties | Alvin Wayne WILSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Harriette Bailey Conn, Public Defender, David P. Freund, Bobby Jay Small, Deputy Public Defenders, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Charles M. Russell, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Alvin Wayne Wilson (Wilson) was convicted by a jury of the charge of first degree burglary. On appeal he alleges, inter alia, that it was error to read State's Final Instruction No. 1 to the jury.
State's Instruction No. 1 reads as follows:
'I instruct you that at all times material to the facts in issue in this cause, there was and is in force in the State of Indiana a statute which provides as follows:
'I further instruct you that it is the law in the State of Indiana and in this cause, if the defendant to found guilty of the offense charged herein, or of a lesser included offense as defined in these instructions, then the Equal Protection Clause of the Fourteenth Amendment and Article 1, Section 23, of the Indiana Constitution require that the defendant be given credit for presentence confinement resulting from this charge of First Degree Burglary.'
In Rowe v. State (1968), 250 Ind. 547, 237 N.E.2d 576, our Supreme Court held that it was reversible error for the prosecuting attorney to make reference in his final argument to the fact that the defendant would receive only a two year sentence should the jury convict the defendant of a lesser included offense instead of the greater offense charged. The Supreme Court clearly held that when the crime charged was one that involved an indeterminate sentence, the issue of punishment is not before the jury, and comments made by the prosecutor concerning the amount of punishment to be imposed could only be calculated to encourage the jury to disapprove of the punishment for...
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