wording instruction in Indiana

2007Indeed, we have held in some cases, typically post-conviction relief appeals, that error of this sort was not fundamental especially when the intent of the perpetrator was not a central issue at trial, see Swallows v. State, 674 N.E.2d 1317 (Ind.1996), or if the wording of the instruction sufficiently suggested the requirement of intent to kill, Jackson v. State, 575 N.E.2d 617, 621 (Ind.1991).

2000Indeed, we have held in some cases, typically post-conviction relief appeals, that error of this sort was not fundamental especially when the intent of the perpetrator was not a central issue at trial, see Swallow’s v. State, 674 N.E.2d 1317 (Ind.1996), or if the wording of the instruction sufficiently suggested the requirement of intent to kill, Jackson v. State, 575 N.E.2d 617, 621 (Ind.1991).

2017Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017 Page 6 of 13 [9] Notably, after Connor was decided and one month before Sanders was handed down, our supreme court reviewed a defendant’s contention that his sentence was inappropriate based solely on his character in Shoun v. State, 67 N.E.3d 635 (Ind. 2017).

1994In support of this argument, he notes that 1.C. 35-42-3-3 includes "two distinct types of criminal confinement by encompassing both confinement by non-consensual restraint in place and confinement by removal." Kelly v. State (1989), Ind., 535 N.E.2d 140 .

1994Phillips v. State (1990), Ind., 550 N.E.2d 1290, 1302 , reh'g denied.

1994Phillips v. State (1990), Ind., 550 N.E.2d 1290, 1302 , reh'g denied.

1990Sipress argues that a juror could reasonably infer that the presumption of innocence applies only to innocent defendants, and not those who are "actually guilty." Although we agree that the wording of the instruction could be improved to advise furors that all defendants are clothed with the presumption of innocence, this particular instruction has been approved by our supreme court in Heald v. State (1986), Ind., 492 N.E.2d 671 , reh'g denied.

1984As tendered by the State, the instruction states: The intent with which an act is done is a mental process and as such often remains hidden within the mind, and may not be capable of proof by direct evidence but may be inferred from outward manifestations or words or acts of the party, or other acts and circumstances surrounding the transaction. *379 As Vaughan notes, the exact wording of this instruction was approved by this district in Simmons v. State, (1983) Ind. App., 455 N.E.2d 1143 , 1146 where we described the language as "clear".

1984Wood v. Zeigler Building Materials, Inc. (1982), Ind.App., 436 N.E.2d 1168 ; S.C. 10(A).

1983The Court of Appeals had found the limitation of liability clause involved in the case to be ineffective because there was an ambiguity in the wording of the clause that made it impossible to determine to whom it applied. 422 N.E.2d at 1277 .

1981It reads as follows: “Fraud is never presumed, but the burden rests upon one charging fraud to make it out by clear and convincing evidence.” (Record at 817.) English Coal gleaned the wording of this instruction from Wallace v. Mattice, (1889) 118 Ind. 59 , 20 N.E. 497 .

1981It reads as follows: “Fraud is never presumed, but the burden rests upon one charging fraud to make it out by clear and convincing evidence.” (Record at 817.) English Coal gleaned the wording of this instruction from Wallace v. Mattice, (1889) 118 Ind. 59 , 20 N.E. 497 .

1979We can state from our research that the Allen charge and its close variants have never been ruled unconstitutional per se as a violation of the right to an impartial trial. 5 The main concern of appellate review is rather the coercive effect on the jury; in other words, to what extent does the charge invade the province of the jury or impress upon the jury extraneous factors in their decision-making process. 6 It has been stated that the Allen charge is “tolerated” by appellate courts. 7 And there does seem to be a trend for appellate courts in their supervisory capacity to either abolish or t

1976That history begins with Bradley v. State (1870), 31 Ind. 492 , and continues to the present in Vacendak v. State (1976), 264 Ind. 101 , 340 N.E.2d 352, 361 , the latest of many intervening expressions of approval which have quoted the following from Baker v. State (1956), 236 Ind. 55, 61 , 138 N.E.2d 641 , 644: “The rule of law defining proof beyond a reasonable doubt has been well settled for many years and requires each juror to be so convinced by the evidence that as a prudent man he would feel safe to act upon such conviction in matters of the highest concern and importance to his own dea

1976That history begins with Bradley v. State (1870), 31 Ind. 492 , and continues to the present in Vacendak v. State (1976), 264 Ind. 101 , 340 N.E.2d 352, 361 , the latest of many intervening expressions of approval which have quoted the following from Baker v. State (1956), 236 Ind. 55, 61 , 138 N.E.2d 641 , 644: “The rule of law defining proof beyond a reasonable doubt has been well settled for many years and requires each juror to be so convinced by the evidence that as a prudent man he would feel safe to act upon such conviction in matters of the highest concern and importance to his own dea

1976That history begins with Bradley v. State (1869), 31 Ind. 492 , and continues to the present in Vacendak v. State (1976), Ind., 340 N.E.2d 352, 361 , the latest of many intervening expressions of approval which have quoted the following from Baker v. State (1956), 236 Ind. 55, 61 , 138 N.E.2d 641 , 644: "The rule of law defining proof beyond a reasonable doubt has been well settled for many years and requires each juror to be so convinced by the evidence that as a prudent man he would feel safe to act upon such conviction in matters of the highest concern and importance to his own dearest and

1976That history begins with Bradley v. State (1870), 31 Ind. 492 , and continues to the present in Vacendak v. State (1976), 264 Ind. 101 , 340 N.E.2d 352, 361 , the latest of many intervening expressions of approval which have quoted the following from Baker v. State (1956), 236 Ind. 55, 61 , 138 N.E.2d 641 , 644: “The rule of law defining proof beyond a reasonable doubt has been well settled for many years and requires each juror to be so convinced by the evidence that as a prudent man he would feel safe to act upon such conviction in matters of the highest concern and importance to his own dea

1976That history begins with Bradley v. State (1870), 31 Ind. 492 , and continues to the present in Vacendak v. State (1976), 264 Ind. 101 , 340 N.E.2d 352, 361 , the latest of many intervening expressions of approval which have quoted the following from Baker v. State (1956), 236 Ind. 55, 61 , 138 N.E.2d 641 , 644: “The rule of law defining proof beyond a reasonable doubt has been well settled for many years and requires each juror to be so convinced by the evidence that as a prudent man he would feel safe to act upon such conviction in matters of the highest concern and importance to his own dea

1976That history begins with Bradley v. State (1870), 31 Ind. 492 , and continues to the present in Vacendak v. State (1976), 264 Ind. 101 , 340 N.E.2d 352, 361 , the latest of many intervening expressions of approval which have quoted the following from Baker v. State (1956), 236 Ind. 55, 61 , 138 N.E.2d 641 , 644: “The rule of law defining proof beyond a reasonable doubt has been well settled for many years and requires each juror to be so convinced by the evidence that as a prudent man he would feel safe to act upon such conviction in matters of the highest concern and importance to his own dea

1960Diblee v. State (1931), 202 Ind. 571 , 177 N. E. 261 cited by appellants, for the reasons above stated, is not applicable here.

1960Diblee v. State (1931), 202 Ind. 571 , 177 N. E. 261 cited by appellants, for the reasons above stated, is not applicable here.

1960An examination of the case of Mattingly v. State (1957), 236 Ind. 632 , 142 N. E. 2d 607 reveals that no question as to the wording of an instruction was involved in that case and no consideration was given as to the framing of an instruction on the point involved to conform to the evidentiary background.

1960An examination of the case of Mattingly v. State (1957), 236 Ind. 632 , 142 N. E. 2d 607 reveals that no question as to the wording of an instruction was involved in that case and no consideration was given as to the framing of an instruction on the point involved to conform to the evidentiary background.

1950Moreover, the following wording of the Supreme Court in Riechmann v. Reasner (1943), 221 Ind. 628, 633 , 51 N. E. 2d 10 , is applicable here: “Appellant does not point out any evidence that would or could be improperly considered.

1950Moreover, the following wording of the Supreme Court in Riechmann v. Reasner (1943), 221 Ind. 628, 633 , 51 N. E. 2d 10 , is applicable here: “Appellant does not point out any evidence that would or could be improperly considered.

1943As we said in State, ex rel., v. Miller, Trustee (1923), 193 Ind. 492, 497 , 141 N. E. 60 , “Repeated re-enactments of those features of the law after the Supreme Court had given it a construction must be deemed a legislative adoption of the construction thus given it.” See, also, Thompson v. Mossburg (1923), 193 Ind. 566, 575 , 139 N. E. 307 , 141 N. E. 241 .

1943As we said in State, ex rel., v. Miller, Trustee (1923), 193 Ind. 492, 497 , 141 N. E. 60 , “Repeated re-enactments of those features of the law after the Supreme Court had given it a construction must be deemed a legislative adoption of the construction thus given it.” See, also, Thompson v. Mossburg (1923), 193 Ind. 566, 575 , 139 N. E. 307 , 141 N. E. 241 .

1943As we said in State, ex rel., v. Miller, Trustee (1923), 193 Ind. 492, 497 , 141 N. E. 60 , “Repeated re-enactments of those features of the law after the Supreme Court had given it a construction must be deemed a legislative adoption of the construction thus given it.” See, also, Thompson v. Mossburg (1923), 193 Ind. 566, 575 , 139 N. E. 307 , 141 N. E. 241 .

1943As we said in State, ex rel., v. Miller, Trustee (1923), 193 Ind. 492, 497 , 141 N. E. 60 , “Repeated re-enactments of those features of the law after the Supreme Court had given it a construction must be deemed a legislative adoption of the construction thus given it.” See, also, Thompson v. Mossburg (1923), 193 Ind. 566, 575 , 139 N. E. 307 , 141 N. E. 241 .

1943As we said in State, ex rel., v. Miller, Trustee (1923), 193 Ind. 492, 497 , 141 N. E. 60 , “Repeated re-enactments of those features of the law after the Supreme Court had given it a construction must be deemed a legislative adoption of the construction thus given it.” See, also, Thompson v. Mossburg (1923), 193 Ind. 566, 575 , 139 N. E. 307 , 141 N. E. 241 .

1930Appellant refers in support of his argument to an instruc *72 tion on the credibility of witnesses who are interested in the case, tendered in Woollen v. Whitacre (1883), 91 Ind. 502 , but the instruction condemned by the court in that case contains this clause: “ but you have the right, and it is your duty, to take into consideration that interest, together with his manner of testifying and the consistency or inconsistency of his statements, if any; also, what contradictory statements, if any, he may have made in relation to the matter in suit. ” This clause was struck out of the instruction