This is a direct appeal from a conviction for robbery, a class C felony, Ind. Code § 35-42-5-1. Appellant was sentenced to a prison term of five years, with thirty years added pursuant to the sentencing provision of the habitual offender statute, Ind. Code § 35-50-2-8.
Appellant raises six issues on appeal concerning the giving and refusing of certain instructions, the admission of certain evidence, the validity of the verdict on the habitual offender allegation, and the validity of the judgment imposed on the habitual offender verdict.
The evidence favorable to the verdict shows that on May 19, 1979, appellant accosted a woman on 34th Street in Indianapolis, pointed a gun at her, and demanded that she go with him behind a nearby building. The woman gave appellant some money and when he again insisted that she go behind the building, she screamed, attracting the attention of a police officer. Appellant fled, but was pursued and caught by the officer.
I.
Appellant’s first claim is that the trial court erred in refusing the following three tendered instructions:
“You are instructed that the Eighth Amendment of the United States Constitution and Article I, § 16 of the Indiana Constitution prohibit the infliction of cruel and unusual punishment. This prohibition applies not only to those punishments that are ‘barbaric’, but also to those that are ‘excessive’ in relation to the crime committed. A punishment is ‘excessive’ and therefore unconstitutional if it (1) makes no measurable contribution to accepted goals of punishment and hence is nothing more than a purposeless and needless imposition of pain and suffering, or (2) is greatly out of proportion to the severity of the crime. A punishment can fail the test of constitutionality on either ground.
*1233 “If after considering all of the evidence presented in this case, you find that the punishment inflicted on the defendant under the Habitual Offender statute is ‘excessive’ under the standards just read to you, then you may take that finding into consideration in rendering your verdict.”
“DEFENDANT’S INSTRUCTION # 2
“You are instructed that Article I, § 18 of the Indiana Constitution states as follows:
‘The penal code shall be founded on the principles of reformation, and not of vindictive justice.’
“If after considering all of the evidence presented in this case, you find that the Habitual Offender statute, as applied, is not founded on principles of reformation, then you may take that finding into consideration in rendering your verdict.”
“DEFENDANT’S INSTRUCTION # 3
“The Constitution of Indiana provides that in all criminal cases the jury shall judge and determine the law as well as the facts. It is the duty of the court to instruct you on the law governing the case, and you should give the court’s instructions respectful attention. However, you have the right to independently determine the law. The instructions given are for your guidance and information and you should give the instructions such consideration and respect as you deem them entitled to.”
Appellant argues that Art. I, § 19, of the Constitution of Indiana requires that such instructions be given. Article I, § 19, provides:
“In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”
Concerning instructions one and two, appellant argues that recent cases holding that trial courts should not inform juries of possible penalties arising from their verdicts of guilty should be overruled in light of the constitutional right of the jury to determine the law as well as the facts. We do not believe that these cases conflict with Art. I, § 19, since we interpret that provision to mean that the jury is to determine the law necessary to reach its verdict. Sentencing no longer being a part of the verdict, the law regarding sentencing is not to be determined by the jury.
Craig v. State,
(1979) Ind.,
Next, concerning all three tendered instructions, appellant acknowledges that in
Fultz v. State,
(1976)
The holding in
Sumpter,
appellant contends, was unsupported by authority or reference and conflicted with
Bryant v. State,
(1933)
We do not consider the holding in
Sump-ter
to be well-grounded. Defense counsel may argue the constitutionality of the statute under which a defendant is charged to the jury.
Bryant, supra; Lynch v. State,
(1857)
By statute, Ind. Code § 35-1-35-1, the trial court is required to charge the jury at the conclusion of the evidence or after final argument by stating to them “all matters of law which are necessary for their information in giving their verdict.” This does not require the court to inform the jury of defense counsel’s theory of the constitutionality of the laws at issue, as tendered instructions one and two attempted to do. Tendered instruction three was adequately covered by the court’s own instruction three which stated in pertinent *1234 part, “[u]nder the law of this State you are the sole judges of both the law and evidence. ...” We have said,
“[w]hen the court informs the jury that they have the right to determine the law and the facts, it states the only legal proposition necessary to be laid down on that subject. No elaboration of it can make it any clearer....” Bridgewater v. State, (1899)153 Ind. 560 , 566,55 N.E. 737 , 739.
It is not error to refuse an instruction the substance of which is adequately covered in another instruction.
Bobbitt v. State,
(1977)
II.
Appellant next claims that the trial court erred in giving the following instruction over his objection that it was confusing, uninformative, and prevented the jury from considering the statutory penalty:
“INSTRUCTION NO. 2
“The Indiana Statute defining the offense charged, including the elements contained therein, insofar as it is applicable, reads as follows:
‘ROBBERY
‘A person who knowingly or intentionally takes property from another person or from the presence of another person:
‘(1) By using or threatening the use of force on any person or
‘(2) By putting any person in fear; commits Robbery, a class C Felony.’ ”
It is a general rule that instructions which are apt to mislead the jury should not be given.
Brewer v. State,
(1969)
III.
Appellant’s next claim is that the trial court erred in allowing into evidence, during the hearing on the habitual offender allegation, a document which showed that, in connection with one of the prior felony convictions, appellant had violated the terms of his probation, and that his probation had been revoked.
This claim is premised upon the assertions that revocation of probation is not a ground upon which the provisions of the habitual offender statute can be invoked and is therefore immaterial, and that its disclosure was obviously prejudicial in that the jurors would conclude from it that he did not deserve their consideration on the habitual offender count. The statute requires only that the State allege that the defendant has accumulated two prior unrelated felony convictions and it does not require the State to allege actual imprisonment or other sentencing for the felony. This requirement provides no justification for the conclusion that a reference to the sentence imposed and subsequent revocation of that sentence is error. Appellant cites
Rowe v. State,
(1968)
IV.
Appellant next contends that the trial court committed fundamental error in giving the following instruction:
*1235 “INSTRUCTION NO. 15
“In that the aforementioned second Count, in part, alleges a prior conviction of the Defendant, it could not be presented to you in the trial of the first Count, just decided, because of the possible inference of guilt which might have arisen therefrom.
“Accordingly, you will now hear additional evidence and argument relevant to Count Two of the charge, and in determining the Defendant’s innocence or guilt thereof, you should consider all of the instructions hereinbefore read to you by the Court as applicable.”
Appellant did not object to this instruction.
The gist of appellant’s claim is that this instruction concerning the habitual offender allegations and referring to instructions given on the robbery count, is couched in criminal terms of “innocence or guilt”, although the statute does not involve a crime but merely creates a classification for purposes of increasing the sentence on the crime charged.
In
Young v. State,
(1967)
As to whether the error was reversible or harmless the issue is not properly before us since appellant failed to object to the instruction and therefore foreclosed review on appeal. Ind.R.Crim.P. 8(B). We observe, however, that the instruction is technically incorrect in calling for a finding of “innocence or guilt.” A proper instruction would have called simply for a finding regarding the allegations. But we believe that the error was harmless since in essence the jury was asked to make the finding called for under the habitual offender statute.
There was no error in the giving of the instruction because appellant failed to ob-jéct to it.
V.
Appellant’s next contention is that the jury’s verdict on the habitual offender allegation was contrary to law because it stated that the defendant was “guilty of the offense of habitual offender.” Since there is no crime of being an habitual offender, the verdict was illegal, he argues. The jury’s use of the word “guilty” is technically incorrect, but for the same reasons set forth above regarding the trial judge’s instruction on the habitual offender statute, we hold that there was no error here.
In addition, appellant argues that the verdict exposed him to double sentencing. We have said often that a sentence imposed under the habitual offender statute is not a sentence for a separate crime but is rather an additional penalty for the crime charged. See, e. g., Wise v.
State,
(1980) Ind.,
There was no error in the jury’s verdict.
VI.
Finally, appellant claims that the trial court committed fundamental error because it gave to the jury the following final instruction:
*1236 “INSTRUCTION NO. 10
“You much first determine the guilt or innocence of the defendant, and if you have reasonable doubt as to guilt of the crime charged, or any offense included thereunder, then you must find the defendant not guilty.
“However, if you find that the State has proven beyond reasonable doubt the material allegations of the charge against the Defendant, or of any offense included thereunder, then you must find the Defendant guilty. Proper verdict forms will be furnished you for your use; furthermore, your sole responsibility is to determine innocence or guilt herein, and should there be a finding of guilty, sentencing responsibility is that of the trial judge alone.” (Emphasis added.)
The text of this instruction places it somewhere between the condemned instruction considered in
Pritchard v. State,
(1967)
“INSTRUCTION NO. 3
“Under the law of this State you are the sole judges of both the law and evidence and you must presume that the defendant is innocent. You must continue to believe he is innocent throughout the trial, unless the State proves that the Defendant is guilty, beyond a reasonable doubt, of every essential element of the offense charged. The burden of proof herein is on the State alone and never shifts to the Defendant.”
While an argument can be made strongly supporting the contention that the challenged instruction was erroneous, the instruction’s particular text and use within the confines of this case does not support the conclusion that the giving of it was fundamental error, that is, error apparent on the record, gross in character, and offensive to our concepts of criminal justice which include the right of the jury to determine the law unimpeded under Art. I, § 19, of the Indiana Constitution.
The failure to object has waived review of this issue.
The conviction is affirmed.