194 Ind. 374 | Ind. | 1924
The appellant, Robert M. Kell, was convicted by a jury of the crime of rape upon a female child under the age of sixteen years. The appellant seeks a reversal of the judgment and assigns as error the overruling of his motion for a new trial. Under such assignment of error he alleges that the verdict was not sustained by sufficient evidence; that the court erred in admitting certain evidence on cross-examination of the appellant; that the court erred in giving and refusing certain instructions.
The appellant' says that the court erred in refusing to give each of instructions numbered 1 and 2 tendered by the defendant. These are general instructions relative to reasonable doubt and the burden of proof and were proper to be given under any state of the evidence in the trial of a criminal case, but in this case other instructions were given by the court in its series of instructions which embraced each principle of law set forth in these instructions or either of them, therefore, it was not error to refuse to give them.
Instruction No. 2a and instruction No. 7, tendered by the defendant are not correct statements of the law as applied to the evidence to which they were directed. The court properly refused to give each of them.
Instruction No. 4, tendered by appellant was fully covered by instruction No. 13, given by the court of its own motion. Where propositions of law have been fully and fairly stated once, the court is not required to give additional instructions tendered, covering the same points and propositions. Bohan v. State (1924), ante 227, 141 N. E. 323; Barnett v. State (1885), 100 Ind. 171.
This evidence was limited by the court by instruction No. 13, given by the court of its own motion as follows: “Certain questions were propounded on cross-examination by counsel for the state, to the defendant, Robert Kell, touching his relations with women other than Evelyn Armstrong. These inquiries were permitted by the court concerning alleged specific acts and conduct extraneous to the issues involved in this case. They were calculated to degrade the defendant and impair his credibility, and were admissible in evidence for the purpose only of bearing upon the weight and credit to be given to the testimony of said defendant.” This instruction properly limited such evidence to the purpose for which it was admitted.
Appellant says that instruction No. 10, given by the court of its own motion is erroneous, “in that it directs the jury to consider all the evidence on the sub-ject of the credibility of witnesses.” The mere reading of instruction No. 10 shows that the objection made by appellant to it is not tenable. The instruction is as follows: “You are the sole judges of the facts and credibility of witnesses including the defendant, who has testified as a witness in this case. It is your duty to reconcile all the statements of witnesses on the theory that the defendant is innocent, if you can. If you cannot reconcile the statements of witnesses on
In Morgan v. State (1921), 190 Ind. 411, it was claimed that an instruction substantially in the language of this one invaded the province of the jury on the question of the credibility of witnesses, but the court held otherwise. It was not error to give this instruction. Morgan v. State, supra; Keesier v. State (1900), 154 Ind. 242; Adams v. State (1924), post 512, 141 N. E. 460.
Appellant also says that instruction No. 12 was erroneous because it “directs the attention of the jury to the fact that the evidence given to prove the general moral character of appellant and all the evidence on cross-examination touching collateral and extraneous matters may be taken into consideration in determining the guilt of the appellant.” The interpretation given to this instruction by appellant is
While it might be said that there is no circumstantial evidence in this case requiring an instruction upon the subject of circumstantial evidence, still no such objection is made to the instruction and when carefully read and considered we do not see how it could have been possible for the jury to have been misled by it. Surely they could not have held it to mean what the appellant says it does. Nothing is pointed out in appellant’s brief to indicate that it was in any way harmful to the appellant. The instruction clearly refers to circumstantial evidence concerning the material facts constituting the crime for which appellant was being tried. While this instruction cannot be commended as a model it was not error to give it in this case.
Instruction No. .16, given by the court of its own motion is assailed by the appellant for the reason that, as he says, it casts suspicion on his testimony. This instruction is upon the subject of the weight and credibility of the testimony of the defendant. It is long and somewhat obscure, but the sentence in it which appellant claims to be erroneous is as follows: “If you believe the things to which the defendant has testified as a witness it will become your duty to give to it such force and effect as you deem it to be entitled to when considered in connection with the other testimony given upon the trial relating to the same matters.” The general rule of law upon the subject of
Judgment reversed, with instructions to the trial' court to sustain appellant’s motion for a new trial.
The clerk will issue the necessary warrant for the return of the prisoner to the sheriff of Gibson county.