Jоseph Nathan Pfeifer was charged with second degree burglary and safe burglary. He was tried before a jury and convicted on both charges. His appeal to this court is based upon two contentions of error:
(1) The verdict of the jury is not sustained by sufficient evidence.
(2) State’s instruction No. 7 was repetitive and therefore error.
In the opinion that follows, we hold that the evidence was *316 sufficient to convict and instruction No. 7 wаs not so repetitive that it amounted to an argument by the court. 1
ERROR NO. 1: On appeal, this court will consider only that evidence most favorable to the State, together with all reasonable inferences which may be drawn therefrom.
Fuller
v.
State
(1971),
EVIDENCE MOST FAVORABLE TO THE STATE: Two police officers were patrolling the B. F. Gоodrich parking lot at Lafayette and Colfax Streets in South Bend, Indiana between 12:00 o’clock A.M. and 1:00 o’clock A.M. on February 2, 1971. Approaching the garage area, they observеd Joseph Nathan Pfeifer standing inside the building. The store’s business hours are from 7:30 o’clock A.M. to 5:30 o’clock P.M. One officer entered the store through a broken window and the other officer еntered through an overhead door. Joseph Nathan Pfeifer was placed under arrest. The police officers observed one of the B. F. Goodrich trucks loaded with televisiоn sets, stereos and radios. The motor of the truck was running and the padlock on the overhead garage door had been pried off. The door connecting the salesroom аnd garage area had been broken open. A safe on the floor *317 of the garage area had smashed hinges. The safe lock had been jimmied and two hammers were lying near thе safe. The store manager was called to the store. He identified the televisions, stereos, radios and safe as articles which were located in the salesroom instead of the garage area of the store when he closed the store. He further testified that the store safe, which was only six weeks old, required the services of a locksmith since it had beеn so badly damaged. Two Hundred and Fifty Dollars ($250.00) had been placed in the safe before closing the store. No one had given Joseph Nathan Pfeifer permission to enter the store аfter business hours.
Considering the facts of this case with those presented in
Smith
v.
State
(1970),
ERROR NO. 2: The objection to the State’s instruction No. 7 during trial was:
“MR. LUBER: The оnly other one would be that we object to State’s Instruction Number Seven for the reason that it is repetitious with Court’s Number Five which already has stated that this is a presumption of law and what it еntails is merely a humane provision and not to protect the guilty.
“THE COURT: I’ll let this one stand. I’ll overrule your objection and give that one. Your objection was that it was repetitious.
“MR. LUBER: Yes.”
State’s instruction No. 7 reads as follows : 2
“While it is the law thаt every person charged with the commission of a crime is presumed to be innocent until his guilt is established beyond a reasonable doubt, yet, if the evidence is so strong and conclusive аs to overcome the presumption of innocence, under the law this presumption *318 of innocence will avail nothing to the Defendant, and under such circumstances you should cоnvict.”
A different error is urged in the appellant’s brief at page 15. This error is:
“State’s Instruction 7 was a repetition of the law contained in Court Instruction 5 and State’s Instruction 1.”
The above objеction made to the trial court makes no reference to State’s instruction no. 1. We further note that what appellant purports to be Court’s instruction no. 5 is, according to the transcript filed with this court, Court’s instruction no. 6.
We are fully - aware of the rule that restricts the appellant’s error on appeal to the specific reasons stated in his objectiоn to the trial court.
Allman
v.
Malsbury
(1946),
Court’s instruction no. 6 reads as follows:
.“While a defendant is presumed in law to be innocent of a crime until the contrary is established by the evidence to. that degree of certainty that you as jurors are convinced of his guilt beyond a reasonable doubt, the rule of law which throws around the defendant the presumption of innoсence and requires the state to establish beyond a reasonable doubt every material fact averred in the affidavit is not intended to shield those who are actually guilty from just and mеrited punishment; but is a humane provision of law which is intended for the protection of the innocent, and to guard, as far as human agencies can, against the conviction of those thаt are innocent and unjustly accused of crime. And by reasonable doubt is not meant a mere whim, a captious or speculative doubt. It is properly •termed a reasonable dоubt, and it must arise from the evidence or lack of evidence relating to some material fact or facts charged in the affidavit.”
*319
*318
The Court’s instruction no.- 6 is an attempt by the court to dеfine the term reasonable doubt to the jury. It expresses'
*319
the idea that a reasonable doubt must be more than mere speculation or whim. Such an interpretation is supported by the cases of
Rhodes
v.
State
(1890),
Instruction no. 7 states that if the evidence is strong enough and convincing enough to overcome the presumption of innocence, the jury may convict the defendаnt. Instruction no. 7, therefore, in no way attempts to define reasonable doubt and is not repetitive of Court’s instruction no. 6.
State’s instruction no. 1 reads as follows:
“A reasonable doubt may arise from the evidence as well аs from a lack of evidence and may be thus defined:
“The rule of law touching reasonable doubt is a fair, reasonable and practical rule for the guidance of practiсal men, when engaged in the solemn and important duty of assisting in a fair, honest and impartial enforcement of the criminal laws of our State.
“It is not, therefore, a rule about which there is anything whimsical or chimerical; it is not a mere possibility of error or mistake that constitutes a reasonable doubt; it does not mean that the jury must be convinced to an absolute and demоnstrative certainty. Despite every precaution that may be taken to prevent it, there may be in all matters pertaining to human affairs a mere possibility of chance of еrror.
“If then, you, and each of you, are so convinced by the evidence, or lack of evidence, of whatever class it may be and considering all the facts and circumstanсes in evidence as a whole, of the guilt of the Defendant that as prudent men and women, you would feel safe to act upon such conviction, in your own dearest and most important, interests, under circumstances when there is no compulsion or coercion upon you to act at all, then you will have arrived at such a degree of certainty as excludеs reasonable doubt and authorizes conviction.” 3
Instruction no. 1 does define reasonable doubt, but it also *320 concludes that if the presumption of innocence is overcome, conviction is warranted. For this reason, it is repetitivе of instruction no. 7.
We must now address ourselves to the more fundamental question. Is the repetition exhibited by instructions 1 and 7 reversible error? Defendant Pfeifer’s contention of reversible error for the above repetitiveness relies upon
Fehlman
v.
State
(1928),
“Such needless repetition amounts to an argument on the part of the court and may mislead the jury. It is not always reversible error, but it is always bad practice.”
Later, in
Zimmerman
v.
State
(1921),
“The giving of this number of instructions upon the one subject is, however, subject to criticism, fоr together they tend to unduly emphasize the particular subject covered. We are not prepared to say that they collectively reached the dignity of an argument by the сourt, or that they go to the extent which may be termed an abuse of discretion, but the point is worthy of notice. Robbins v. Fugit (1920),189 Ind. 165 ,126 N. E. 321 .”
The rule is that the repetition of instructions must amount to an argument by the court of one particular phase of the case before the substantial rights of the defendant are violated. Considering State’s instructions no. 1 and 6 together with Court’s instructions no. 4, 5, and 6, 4 the repеtition did not unduly stress the point that the presumption of innocence would not protect the defendant. It did not unduly emphasize to the jury that they should look hard for a *321 conviction. The reрetition in these instructions was not reversible error.
The judgment of the trial court should be and the same hereby is affirmed.
Iioffman, C.J. and Sharp, J., concur.
Note. — Reported in
Notes
. Joseph Nathan Pfeifer was sentenced to the Indiana Reformatory for not less than two nor more than five years on the second degree burglary charge and was further sentenced to not less than five nor more than ten years on the charge of sаfe burglary. I.C. 1971, 35-13-4-4; Ind. Ann. Stat. §10-701 and I.C. 1971, 35-1-61-1; Ind. Ann. Stat. §10-702a (Burns 1956).
. State’s instruction no. 7 is almost an exact duplicate of an instruction approved by the Supreme Court in
Rokvic v. State
(1924),
. State’s instruction no. 1 is almost an exact copy of an instruction approved in
Chambers v. State, supra,
. We note that Court’s instructions no. 4, 5 and 6 were given before trial and at the close of the evidence.