188 Ind. 239 | Ind. | 1919
— This is an appeal from a judgment of conviction upon an affidavit charging appellant, together with three others, with the crime of conspiracy to commit arson. Appellant upon his own motion was granted a separate trial from his codefendants, and the cause was submitted to a jury for trial on the issue formed by the plea of not guilty to the charge in the affidavit. The only error assigned is that the court erred in overruling appellant’s motion for a new trial. In appellant’s motion for a new trial he insists that the court erred in- giving, over objection of appellant, certain instructions of its own motion.
The court of its own motion gave the following instruction, No. 20, over the objection of appellant: “The good character of the accused, when satisfactorily established by competent evidence, is an ingredient
And in instruction No. 26, given by the court of its own motion over appellant’s objection, the court said: “The court also instructs you that evidence has been permitted to be introduced touching upon the bad moral character of the defendant in the community in which he lived. This evidence is competent upon behalf of the state, and if the jury believe from the evidence that prior to the time it is alleged that the crime was committed the defendant bore a bad reputation in the community in which he lived for morality, then this is a fact proper to be considered by you, together with all the other facts proven in the case, in determining the guilt or innocence of the defendant, and after a careful consideration of all the evidence in this case, including that pertaining to his previous good character, if such evidence has been introduced, as well as the evidence with reference to his previous bad-character, if such evidence has been introduced, the jury entertain any reasonable doubt of the defendant’s guilt he cannot be convicted. And, also, if you find from the evidence that on and prior to the 10th day of July, 1916, either of the co-
Instruction No. 27, given by the court of its own motion over objection of appellant, is as follows: “Evidence has been permitted to go to you concerning the whole period of the defendant’s life, up to the alleged commission of the alleged offense. This evidence has been proper and must be considered by you, in weighing the testimony on the question of the defendant’s guilt or innocence. It was permitted for the purpose of showing what manner of man the defendant has been during all this period, that you might consider the question of whether or not such a man would be guilty of such an offense as charged in the affidavit, and also that you might consider his own testimony, and the truthfulness of the same, and in determining his guilt or innocence you will at all times have in your mind what manner of man this defendant has been shown to be by the evidence touching on that question. It will be also your duty to consider the evidence, if there is any evidence on that subject, tending to show the reputation of the defendant on trial for morality in that cofnmunity.”
Appellant claims that each of said instructions Nos. 20, 26 and 27 is erroneous and harmful to appellant for the reasons: (1) That instruction No. 20 charged the
The defendant objected to this question on the grounds that the defendant’s moral character had not been put in issue, that only his character for honesty and integrity had been put in issue, and further that it is not proper to go to specific acts to attack reputation, but the court overruled the objections, and required the defendant to answer. He then answered, “I was — the date is wrong, that is all.”
This evidence was brought out in cross-examination by the state, and under the rule laid down in Vancleave v. State (1897), 150 Ind. 278, 49 N. E. 1060, it was not error for the court to require the defendant to answer this question upon cross-examination, when the court informed the jury that such evidence could only be considered by the jury as affecting the'Credibility of the defendant’s testimony. The defendant in becoming a witness subjected himself to the same treatment as any other witness, but that did not authorize the court to instruct the jury that such impeaching questions should ■ be considered by the jury in determining the guilt or innocence of defendant in the case on trial. The impeachment of a witness for moral character only goes to the weight of his evidence and not to prove any issue in criminal cases. In Vancleave v. State, supra, it is held that a person on trial for larceny, who becomes a witness in his own behalf, may be asked on cross-examination whether he had not previously been convicted of a similar crime, for the purpose of showing his credibility as a witness. In that case the appellant, while on
In instruction No. 27 the jury were told that they must consider the evidence, which had been permitted to go to them, concerning the whole period of defendant’s life up to the commission of the alleged offense, in weighing the testimony on the question of the defendant’s guilt or innocence. The instruction closes by saying: “It will be also your duty to consider the evidence, if there is any evidence on that subject, tending to show the reputation of the defendant on trial for morality.”
For error in giving instructions Nos. 20, 26 and 27
Note. — Reported in 123 N. E. 118. See under (1) 40 Cyc 2510, 2622; (2) 40 Cyc 2564, 2615, 2626, 2662; (3) 16 C. J. 580, 586; (4) 17 C. J. 340.