194 Ind. 512 | Ind. | 1923
The appellant was tried upon an indictment charging him with larceny of certain auto
The only error assigned is on the court’s action in overruling appellant’s motion for a new trial. The appellant says that it was error for the court to give, upon its own motion, instructions numbered 5, 6, 7, 14 and 15, that the verdict of the jury is not sustained by sufficient evidence and is contrary to law, that the court erred in admitting improper evidence which influenced or caused the verdict. >
We will first consider appellant’s objection to the introduction of evidence. Evidence was admitted over the objection of the appellant tending to show that the appellant, after his indictment and before the trial of the cause, had attempted to prevent one Angus Butcher, who was jointly indicted with this appellant, and who had confessed his part in the transaction and agreed to testify on behalf of the state, from testifying in the case, that the appellant^ by threats and intimidation, had attempted to get such witness out of the jurisdiction of the court before the trial of said cause. The defendant objected to all such evidence, for the reason, as he stated, that by such evidence the state sought to prove an entirely separate and distinct crime other than that charged in the indictment and that the evidence was with reference to an entirely collateral matter and was wholly irrelevant to prove or disprove any of the issues presented by the indictment. In Eacock v. State (1907), 169 Ind. 488, on page 499, the court said: “Evidence that an accused has pro
Relative to the testimony admitted tending to show that appellant had attempted to prevent a witness from testifying in the case, the court, of its own motion, gave the following instruction, numbered 5:
“If you believe from the evidence in this case beyond a reasonable doubt that on or about the 28th day of ■March, 1922, after an indictment in this cause was returned and while said cause was pending in this court, the defendant, George W. Adams, attempted to prevent the prosecuting witness, Angus Butcher, from being present and testifying as a witness on behalf of the State at the trial of this cause, and ¿hat such attempt upon the part of the defendant was made by means of threats and intimidation or by carrying or attempting to carry the said Angus Butcher beyond the jurisdiction of this court, then you may consider such attempt upon the part of the defendant as a circumstance along with all the other evidence in this cause in determining the guilt or innocence of this defendant, but such attempt upon the part of the defendant must first be established beyond a reasonable doubt.” The objection to this instruction urged by the appellant is the same as he urges to the admission of the testimony showing his attempt to prevent the witness from testifying. For reasons stated in the discussion of the testimony, it was not error to give this instruction.
In the case of Walters v. State (1915), 183 Ind. 178, cited by appellant, the court says, in discussing the instruction: “It is sufficient to entitle the defendant to acquittal if the evidence in the case is such as to create or leave a reasonable doubt as to his guilt regardless of whether it is produced by the defendant or by the State.” This instruction is not open to the objection urged against it. Walters v. State, supra.
Instruction No. 7, given by the court of its own motion, is as follows: “The jury are instructed that in a criminal cause the defendant is presumed to be innocent until his guilt is shown by the evidence beyond a reasonable doubt, and this rule requires that each juror be convinced by the evidence beyond a reasonable doubt that the defendant is guilty under the law of the offense charged in the indictment. The court further instructs you that while it is the duty of each juror to act upon his own individual judgment and determine for himself the issue of the guilt or innocence of the defendant of the crime charged, and that he must look solely to the law and the evidence in the cause in determining for himself the. guilt or innocence of the defendant, yet, it is likewise the duty of each juror to consult honestly, freely and fairly with his fellow jurors and endeavor with them, by a fair consideration of the law and evidence in the cause, to arrive at' a just conclusion as to the guilt or innocence of the defendant. No juror, through carelessness or indifference, should yield his own judgment in this cause to the judgment of his fellow jurors. Neither should he, on the other hand, allow mere pride of personal opinion to prevent him from consulting and reasoning and deliberating with his fel
The appellant says that this instruction was clearly prejudicial to the appellant for the reason that the court used the following language in defining the duties of jurors;.“neither should he, on the other hand, allow mere pride of personal opinion to prevent him from consulting and reasoning and deliberating with his fellow jurors in an honest and good-faith effort to arrive at a just opinion in this cause.” It does not, as appellant insists, direct each juror to waive his own personal opinion as to the guilt or innocence of the defendant when consulting, reasoning and deliberating with his fellow jurors, and adopt the reasoning and argument of his fellow jurors. We cannot think that this instruction would mislead any juryman to believe that he must subserve his own opinion to that of his fellow jurors. This instruction is not open to the objection urged against it.
Instruction No. 14, given by the court of its own motion, is as follows: “An accomplice is one who, with criminal intent, acts with others and participates in the commission of a crime. Under the laws of the State of Indiana, an accomplice is competent as a witness for the state in the trial of a criminal case. The evidence of an accomplice is to be received and weighed by the jury in the same manner and according to the same rules as the evidence of any other-witness. It is the duty of the court and jury to carefully scrutinize the testimony of an accomplice; and, if his testimony shall be found sufficiently satisfactory to the jury, they may return a verdict of guilty on his testimony alone.”
The appellant urges that this instruction is erroneous because it closes with the following sentence: “if his testimony shall be found sufficiently satisfactory to the jury, they may return a verdict of
The appellant claims that it was error to give instruction No. 15, given by the court of its own motion. This was an instruction given relative to the weight and credibility of witnesses who testified in the cause. The appellant sets out the following language in said instruction and says that it is prejudicial to the rights of appellant because it assumes that the jury will reject the evidence of defendant by reason of his interest in the cause. The part of the instruction which is set out by the appellant in his brief, ■is as follows: “You are further instructed that the defendant, George W. Adams, having testified as a witness in this cause in his own behalf, you should not reject his evidence merely because of the fact that he is the defendant and now on trial.” This is a part of the first sentence in said instruction relative to the testimony of the defendant, but to this is added the following: “but you are to judge of his testimony by the same standards as that of any other witness, taking into consideration all the matters and applying all the standards to his testimony by which you would judge the credibility of the other witnesses who have testified before you and the weight to be given to their evidence, and then give to his testimony in this cause whatever
The next proposition relied upon by appellant for reversal is that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. In considering this question, the court must consider only the evidence favorable to the appéllee. Appellant claims that the conviction of appellant rests entirely upon the testimony of one Angus Butcher, an accomplice. That Butcher was at the time of the trial under indictment in the Jay Circuit Court, charged with the same crime; that he was an accomplice and that a safe rule for courts or jurors to follow is that there must be corroboration of the testimony of an accomplice in all details before a conviction should be permitted to stand. That, at the very least, no conviction should stand where an accomplice is disputed in every detail. This asks us to weigh the evidence in the case, which we cannot do.
By §2111 Burns 1914, Acts 1905 p. 584, accomplices are competent witnesses when they consent to testify. In Schuster v. State, supra, it is held that an instruction that the evidence of an accomplice testifying should be received by the court and
The verdict is supported by sufficient evidence, and is not contrary to law.
Judgment affirmed.