188 Ind. 14 | Ind. | 1919
— Appellant was charged by affidavit, tried and convicted by a jury in the court below, with keeping, running and-operating a place where intoxicating liquors were sold, in violation of §8351 Burns 1914, Acts 1907 p. 689.
Appellant also assigns as error: (2) The overruling of his motion to make the affidavit more specific. Under this specification he argues that he was entitled to the facts upon which the pleader based his conclusion that appellant “did then and there unlawfully keep, run and operate a place where intoxicating liquors were then and there sold, bartered and given away in violation of the laws of the State of Indiana.”
Appellant has assigned error on the overruling of his motion for a new trial. Under this assignment he ques
This instruction is subject to criticism, in that the same consideration referred to in the last part of this instruction may import innocence as well as guilt; however, considering the instructions as a whole, we are persuaded that this instruction, for this reason, was not harmful to appellant.
It will be observed that by this instruction the jury was told that the evidence relating to the defendant’s character for morality and as a law-abiding citizen was “only competent" while • considering all the evidence in the case, in determining his guilt or innocence. True, previous .good character will not justify the commission of crime, nor will it alone avail as a defense, where, upon a consideration of all the evidence introduced at the trial, it clearly appears beyond a reasonable doubt that the defendant is guilty of the offense with which he is charged. But this is not the only purpose for which good character if found by the jury may be considered. For, as said in Walker v. State (1894), 136 Ind. 663, 669, 36 N. E. 356, and reaffirmed in Hundley v. State (1909), 173 Ind. 684, 91 N. E. 225: “Good character may always benefit a guilty defendant, for the jury may take it into consideration in fixing his punishment, and may, by reason of his character, 'mitigate the punishment.” Under the instruction before us the jury was precluded from- considering good character of the appellant for any purpose other than in connection with all of the other evidence in determining his guilt. Upon a careful consideration of the evidence in this case, and in view of the punishment assessed, we are satisfied that the instruction was not only erroneous, but harmful. 1 Wharton, Criminal Law (11th ed.) §397.
Other questions are presented which may not arise at another trial, and we deem it unnecessary to consider them at this time. For the error in giving instruction No. 8, the judgment must be reversed, and it is so ordered with instructions to the trial court to grant a new trial, and for further proceedings not inconsistent with this opinion.
Note.' — Reported in 121 N. E. 369.