186 Ind. 581 | Ind. | 1917
Appellant was prosecuted upon an affidavit, for a misdemeanor — drawing a dangerous weapon on one James Orr. This appeal is from a judgment on a verdict of conviction by a jury. A motion for a new trial was overruled, and this ruling is the only error assigned. In support of this motion it is urged that the verdict is not sustained by the evidence, is contrary to law, and that the trial court erred in giving to the jury instructions Nos. 3, 4, 5, 7, 8 and 11 and in refusing to give .instruction No. 1 tendered by appellant.
On December 3, 1915, appellant was a justice of the peace and had his office or courtroom on the second floor of a building in the city of Gary, and was also proprietor of a wholesale liquor store located on the first floor of the same building. On the above date one Vincent Marovich was a defendant in an attachment and garnishment proceeding in appellant’s court. On the evening of that day, and while appellant was in his wholesale place of business, Marovich entered and sought to have him release the money covered by the garnishee proceedings. A controversy arose between, them, and possibly some blows were struck. Appellant attempted to arrest Marovich, who then ran out of the room onto the street and appellant followed him with a quart bottle in his hand, apparently intending to strike
The objections to instructions Nos. 7 and. 8 have been fully answered in this opinion under our consideration of the first two specifications.
Objection is made to that clause of the instruction “standing of the men in the community”. It is a well-settled principle in this State that instructions to a jury must be within the issues, and pertinent to the evidence. The only evidence in this case on which the jury might speculate as to the standing of appellant in the community comes from his admitted business. But the instruction in question told the jury that in assessing punishment it should consider the “standing of the man in the community”. The clause “standing of the man in the community” is a broad and comprehensive statement, and as here used, properly interpreted, referred to appellant’s place in the community in the estimation of others, his relative position in social, commercial or moral relations, his repute, grade or rank. According to the instruction the jury was to consider appellant in the light of his standing in the community as an element in aid to the fixing of a proper penalty. Without evidence to guide the jury in this particular, its action would be purely speculative, and an improper basis for determining a proper punishment. Drake v. State (1874), 51 Ala. 30; Barker v. State (1874), 48 Ind. 163, 168. However, in our opinion, even though there was evidence of this character, it could not be considered for the purpose of enhancing or diminishing punishment.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial.
Note. — Reported in 117 N. E. 562. Criminal law: (a) When a peace officer may arrest without warrant for a misdemeanor committed in his presence, 9 Ann. Cas. 623, 5 C. J. 436, 3 Cyc 897; (b) necessity of immediate arrest to prevent escape as a condition of right to make arrest without warrant, 2 L. R. A. (N. S.) 730; (c) persons liable to arrest on criminal charges, 5 C. J. 387, 404, 3 Cyc 874, 918; (d) when acts of officer in making arrest' constitute an offense, 5 C. J. 424, 750, 3 Cyc 890; (e) instructions on matters not in evidence, 97 Am. St. 793.