Dеfendant-Appellant was charged with first degree murder in the shooting death of Ella Dailey. After a trial by jury he was convicted of second degree murder and sentenced to the Indiana State Prison for not less than fifteen (15) nor more than twеnty-five (25) years.
Appellant assigns three errors on this appeal as follows:
1. Whether or not the trial court erred in denying Defendant’s motion for mistrial after the prosecutor had asked a police officer who was a witness for the State whether or not he had had a conversation with the Aрpellant. The contents of that conversation had been suppressed as evidence pursuant to the Defendant’s motion. The Appellant claims further error because the court later made a comment that the jury did not need to read an exhibit offered, by the defendant which counsel had introduced and a witness had repeated verbatim on the stand. Defendant claimed he was compelled to produce the statement in an attempt tо mitigate the harm he thought had been done by the police officer’s reference to a conversation.
2. Whether it was error for the Court to refuse to give Defendant’s tendered Instruction No. 17.
3. Whether it was error for the Court to rеfuse to give Defendant’s tendered Instruction No. 22.
Following Defendant’s arrest the Defendant gave a statement to the police in the presence of Officer James Strode. During the trial of this cause the Defendant moved to suppress the contents of that statement on the grounds, inter alia, that the state had failed to comply with the statute requiring them to take the Defendant before a magistrate within six *223 hours of his arrest. IC 1971, 35-5-5-3 [Burns’ Ind. Stat. Ann. § 9-1636 (1972 Supp.)]. After an extensive hearing out of the presence of the jury, the Defendant’s motion to suppress the statement given by the Appellant was sustained. The trial proceeded, and during the testimony of police officer James Strode, the following questions appear in the transcript
“Q. Det. Strode, when’s the first time you saw Roland Lolla, after May 29th, 1970?
A. That was on June the 1st, 1970, at approximately 7:40 P.M., that evening.
Q. Did you have a conversation with him at that time?
A. Yes, sir.
Q. Now,----”
At this point defense counsel immediately asked that the jury be excused and in their absence moved for a mistrial. Defendant argued thаt the case should be withdrawn from the jury for the misconduct of the prosecuting attorney in attempting to ask about a conversation that had taken place after the contents of said conversation had been supprеssed as evidence by the court. It was apparently the belief of the Defendant’s attorney that if the trial were to continue he would have to disclose the contents of Defendant’s statement or otherwise the jury would think that somеthing was being withheld from them to the prejudice of the Defendant. When the court indicated its desire to take the mistrial motion under advisement Defendant objected. In addition, when the court offered counsel an admonition to the jury, counsel declined because he was of the view that no admonition could cure the problem, but would only draw attention to it. The court then denied the motion for mistrial.
It is well settled that the granting of a motion for mistrial rests largely within the sound discrеtion of the trial court.
Duke
v.
State
(1968),
This court has developed standards fоr determining in what circumstances such an error should be grounds for mistrial.
White
v.
State
(1971),
“The question considered is one that must, of necessity, be determined by the facts of each case, as it arises, and this doubtlessly is the reason for the general rule, follоwed in this state and elsewhere, that the granting of a mistrial rests largely in the sound discretion of the trial judge. . . .“ Id.,272 N. E. 2d at 313 .
In White, supra, this court held that there were reasonable grounds to believe that the offered testimony prejudiced the defendant and that an аdmonition by the court could not have cured that prejudice. In that case, a police officer offered testimony that the defendant had been involved in another crime — an armed robbery some time previous to the inсident which gave rise to the charge of theft. We are of the view that the White case can be easily distinguished from the case at bar on the basis that showing that defendant had been implicated in another robbery was clearly prеjudicial. Here no evidence of the content of the statement was given at the time it was mentioned.
*226
We believe that this case conforms more closely to
Duke
v.
State
(1968),
“If, when all is said and done, the conviction [belief] is sure that the error did not influence the jury, or had but very slight effect, the vеrdict and the judgment should stand, . . .” Id. at 764,66 S. Ct. 1248 ,90 L. Ed. 1566 .
We are convinced that the fears of Defendant’s counsel in the case at bar were unwarranted and that the jury was not influenced by the answer of Officer Strode. If Defendant thought he was prejudiced, he should have asked for and accepted a curative admonition in these circumstances.
Appellant also argues that the prejudice above complained of was compounded by a statement made by the triаl judge at a point when the Defendant’s attorney was attempting to introduce a written statement made by the Defendant to Officer Strode. The following colloquy is relevant to this alleged error:
“The Court: Gentlemen, let’s not get into a big legal hаssel here. Officer, did you testify verbatim from that statement? A. Yes, sir, I believe I might of omitted a word, but I think it’s pretty much verbatim.
The Court: Well, then, if neither counsel has any objection, the jury can just pass it down amongst themselves to see that it is a written statement, made by the Officer. They don’t need to read it, because the Officer has testified, verbatim, from it. Is this all right with both counsel ?”
The Defendant’s attorney immediately complained of the court’s remark because he felt that the remarks suggested to the jury that an exhibit introduced by the Defendant was not worthy of careful study. The record conclusively shows *227 that the jury was given ample time to look over the document and to read it if they wished. In fact one juror asked for additional time so that he could finish reading the statement.
“The Court: All right, ladies and gentlemen, have each of you had ample time, now, to look over this documént, and read it, or look it over, or anything like this? Let the record so show that no juror desires any additional time. . . .
Mr.Petus: Your Honor, I think a juror . . .
The Court: Oh, Number 3?
Juror No. 3: Will we have any opportunities to look at it during deliberation.
The Court: No, sir, you will not.
Juror No. 3: In that case, I’d like to see it again.
The Court: All right, go right ahead, sir.”
In these circumstances we do not think that the trial court’s remark constituted error or a comment upon the evidence as asserted by the Appellant. Rather, we think it was an effort on the part of the court to expedite the proceedings under circumstances where the officer had testified practically verbatim from the statement introduced.
The Appellant next contends that the trial court erred in refusing his tendered Instruction No. 17 which reads as follows:
“The evidence against one charged with crime must prove every element of the offense beyond any reasonable doubt before there can be any conviction; and on the other hand the evidence favorable to the accused need only be sufficient to raise reasonable doubt of the establishment of any one of the essential elements of the crime tо require an acquital.”
Appellant argues that the offered instruction was a correct statement of the law and should have been given. However, it is well settled in Indiana that the refusal or failure to give an instruction is not grounds for revеrsal if the substance is covered by other instructions.
Johnson
*228
v.
State
(1972),
Instruction No. 7 given by the court fully apprised the jury of the burden of proof that rests upon the state in a criminal trial. Therefore, it was not improper for the court to refuse Defendаnt’s tendered Instruction No. 17.
Appellant finally contends that the trial court committed reversible error by refusing Instruction No. 22, which reads as follows :
“To constitute a criminal offense, two things must be established, the intent to do the wrong or commit the аct and the performance of the act, or the commission of the wrong in pursuance of the intent, and the intent and act must concur in point of time.”
For the same reason, the court’s refusal was not error in light of the court’s preliminary Instruction No. 12 and Defendant’s tendered Instruction No. 2 which were given.
For the reasons stated, the judgment of the trial court is affirmed.
All Justices concur.
Note.—Reported in