giving of said instruction in Indiana

1975The identical instruction was first given in the case of Smith v. State (1960), 241 Ind. 311 , 170 N.E.2d 794 and subsequently approved in the case of Haynes v. State (1973), 155 Ind. App. 472 , 293 N.E.2d 204 , wherein this court held that the giving of said instruction was not error.

1975The identical instruction was first given in the case of Smith v. State (1960), 241 Ind. 311 , 170 N.E.2d 794 and subsequently approved in the case of Haynes v. State (1973), 155 Ind. App. 472 , 293 N.E.2d 204 , wherein this court held that the giving of said instruction was not error.

1975The identical instruction was first given in the case of Smith v. State (1960), 241 Ind. 311 , 170 N.E.2d 794 and subsequently approved in the case of Haynes v. State (1973), 155 Ind. App. 472 , 293 N.E.2d 204 , wherein this court held that the giving of said instruction was not error.

1975The identical instruction was first given in the case of Smith v. State (1960), 241 Ind. 311 , 170 N.E.2d 794 and subsequently approved in the case of Haynes v. State (1973), 155 Ind. App. 472 , 293 N.E.2d 204 , wherein this court held that the giving of said instruction was not error.

1975The County relies on the case of Board of Commissioners of Miami County v. Klepinger (1971), 149 Ind. App. 377 , 273 N.E.2d 109 .

1975The County relies on the case of Board of Commissioners of Miami County v. Klepinger (1971), 149 Ind. App. 377 , 273 N.E.2d 109 .

1970In the case of Dedrick v. State (1936), 210 Ind. 259 , 2 N. E. 2d 409 , the following instruction was given by the trial court: "If the State of Indiana has proved that the property described in the affidavit was stolen, and that such property was, after the larceny, found in the exclusive possession of the defendant, then the law imposes upon him the burden of accounting for his possession and showing that such possession was innocently acquired, and if he fails to do so or gives a false account of his possession the presumption arises that he has unlawfully acquired the possession of such pr

1970In the case of Dedrick v. State (1936), 210 Ind. 259 , 2 N. E. 2d 409 , the following instruction was given by the trial court: "If the State of Indiana has proved that the property described in the affidavit was stolen, and that such property was, after the larceny, found in the exclusive possession of the defendant, then the law imposes upon him the burden of accounting for his possession and showing that such possession was innocently acquired, and if he fails to do so or gives a false account of his possession the presumption arises that he has unlawfully acquired the possession of such pr

1969Further, the following language from Pawlisch v. Atkins (1932), 96 Ind. App. 132, 138 , 182 N. E. 636 , although dealing with an erroneous statement of law upon a material issue as contained in a given instruction, rather than an instruction not within the issues or applicable to the evidence, is appropriate: “But it is .contended by the appellee that the instructions as a whole gave the jury a correct idea of the law and that a correct result was reached and that the giving of said instruction in the instant case, even though it be erroneous, did not constitute reversible error.

1969Further, the following language from Pawlisch v. Atkins (1932), 96 Ind. App. 132, 138 , 182 N. E. 636 , although dealing with an erroneous statement of law upon a material issue as contained in a given instruction, rather than an instruction not within the issues or applicable to the evidence, is appropriate: “But it is .contended by the appellee that the instructions as a whole gave the jury a correct idea of the law and that a correct result was reached and that the giving of said instruction in the instant case, even though it be erroneous, did not constitute reversible error.

1969In requesting instruction No. 2 be tendered by the court, the state relied for its authority for the giving of said instruction *162 on Warren v. State (1962), 243 Ind. 508, 515 , 188 N.E.2d 108 .

1969In requesting instruction No. 2 be tendered by the court, the state relied for its authority for the giving of said instruction *162 on Warren v. State (1962), 243 Ind. 508, 515 , 188 N.E.2d 108 .

1959Burks v. Walters (1957), 127 Ind. App. 358, 367 , 141 N. E. 2d 872 , and eases there cited.

1959Burks v. Walters (1957), 127 Ind. App. 358, 367 , 141 N. E. 2d 872 , and eases there cited.

1958The crime charged does not consist in threatening to charge an innocent party with crime, or with degrading and disgraceful immoral conduct, but consists in threatening to make such accusation, with the intent to extort or gain from, any person his chattels, money, etc. ...” (Emphasis supplied.) See also: McNamara v. State (1932), 203 Ind. 596, 603 , 181 N. E. 512, 515 .

1958The crime charged does not consist in threatening to charge an innocent party with crime, or with degrading and disgraceful immoral conduct, but consists in threatening to make such accusation, with the intent to extort or gain from, any person his chattels, money, etc. ...” (Emphasis supplied.) See also: McNamara v. State (1932), 203 Ind. 596, 603 , 181 N. E. 512, 515 .

1958Topper, then you should find the defendant guilty.” (Tr. pp. 49, 50, ll. 15-5, Appellant’s brief, p. 34.) Appellant made timely objection to the giving of said instruction for the reason the statement that the essential element of blackmail is “the threat to make an accusation of immoral conduct regardless of whether such accusation is true, is an incorrect statement of the law because it omits any reference to wrongful intent. . . . ” (Tr. p. 50, ll. 16-20, Appellant’s brief, p. 34.) As stated by this court in Kessler v. The State (1875), 50 Ind. 229 , at p. 233: “. . .

1950Gamble v. Lewis (1949), 227 Ind. 455, 459 , 85 N. E. 2d 629, 632 .

1950Gamble v. Lewis (1949), 227 Ind. 455, 459 , 85 N. E. 2d 629, 632 .

1946The court erred in overruling appellant’s motion for new trial.” Cause No. 4 in the motion for new trial is “Error of law occurring at the trial in this, that the court erred in giving to the jury, on its own motion, instruction 11.” With respect to this instruction, the appellee in its brief says: “In the opinion of appellee the giving of said instruction was reversible error on the part of the court, especially in view of the fact that this was the only instruction on this subject given by the court, and we respectfully submit to this court in support of our belief the following cases: Witt

1946The court erred in overruling appellant’s motion for new trial.” Cause No. 4 in the motion for new trial is “Error of law occurring at the trial in this, that the court erred in giving to the jury, on its own motion, instruction 11.” With respect to this instruction, the appellee in its brief says: “In the opinion of appellee the giving of said instruction was reversible error on the part of the court, especially in view of the fact that this was the only instruction on this subject given by the court, and we respectfully submit to this court in support of our belief the following cases: Witt

1946The court erred in overruling appellant’s motion for new trial.” Cause No. 4 in the motion for new trial is “Error of law occurring at the trial in this, that the court erred in giving to the jury, on its own motion, instruction 11.” With respect to this instruction, the appellee in its brief says: “In the opinion of appellee the giving of said instruction was reversible error on the part of the court, especially in view of the fact that this was the only instruction on this subject given by the court, and we respectfully submit to this court in support of our belief the following cases: Witt

1946The court erred in overruling appellant’s motion for new trial.” Cause No. 4 in the motion for new trial is “Error of law occurring at the trial in this, that the court erred in giving to the jury, on its own motion, instruction 11.” With respect to this instruction, the appellee in its brief says: “In the opinion of appellee the giving of said instruction was reversible error on the part of the court, especially in view of the fact that this was the only instruction on this subject given by the court, and we respectfully submit to this court in support of our belief the following cases: Witt

1946The court erred in overruling appellant’s motion for new trial.” Cause No. 4 in the motion for new trial is “Error of law occurring at the trial in this, that the court erred in giving to the jury, on its own motion, instruction 11.” With respect to this instruction, the appellee in its brief says: “In the opinion of appellee the giving of said instruction was reversible error on the part of the court, especially in view of the fact that this was the only instruction on this subject given by the court, and we respectfully submit to this court in support of our belief the following cases: Witt

1937The instructions must be considered as a whole, and are to be considered in connection with each other.” The initial point of inquiry with which we are faced while considering whether the giving of said instruction 5 constitutes' reversible error is “Was the jury misled?” See Livingston v. Rice (1933), 96 Ind. App. 176 , 184 N. E. 583 , and cases there cited.

1937The instructions must be considered as a whole, and are to be considered in connection with each other.” The initial point of inquiry with which we are faced while considering whether the giving of said instruction 5 constitutes' reversible error is “Was the jury misled?” See Livingston v. Rice (1933), 96 Ind. App. 176 , 184 N. E. 583 , and cases there cited.

1921This instruction was the same as the one given in Sawyer v. State (1871), 35 Ind. 80 , except that it omitted the following sentence: “For the reason that if the accused were in truth insane at the time of the commission of the alleged acts, then he ought not to be punished for such acts.” This instruction cannot be commended, but its infirmity consists in what it fails to state, rather than in what it does state, and, when this omission is supplied by full and complete instructions which make clear the law upon the issue of insanity, in this case we cannot say that the giving of said instruct

1920Washburn-Crosby Co. v. Cook (1918), 70 Ind. App. 463 , 120 N. E. 434 ; Scottish, etc., Ins.

1920Washburn-Crosby Co. v. Cook (1918), 70 Ind. App. 463 , 120 N. E. 434 ; Scottish, etc., Ins.

1919City of Decatur v. Eady (1916), 186 Ind. 205 , 115 N. E. 577 , L.

1919City of Decatur v. Eady (1916), 186 Ind. 205 , 115 N. E. 577 , L.

1919Elliott, App. Proc. §627; 3 Cyc 243, 244; Watts v. Hermitage Cotton Mills (1913), 95 S. C. 138, 78 S. E. 798 ; San Antonio, etc., R.

1914Noto. — Reported in 104 N. E. 872 .

1910Under such circumstances, appellants not having objected to the giving of said instruction orally, it will be presumed, nothing to the contrary appearing in the record, that they consented to the giving thereof orally as provided in section one of the act of 1903, supra. Elliott, App. Proc. §§709, 712; State v. Preston (1894), 4 Idaho 215 , 221-223, 38 Pac. 694 ; People v. Ferris (1880), 56 Cal. 442, 445 ; People v. Ludwig (1897), 118 Cal. 328, 329 , 50 Pac. 426 . 11.

1910Under such circumstances, appellants not having objected to the giving of said instruction orally, it will be presumed, nothing to the contrary appearing in the record, that they consented to the giving thereof orally as provided in section one of the act of 1903, supra. Elliott, App. Proc. §§709, 712; State v. Preston (1894), 4 Idaho 215 , 221-223, 38 Pac. 694 ; People v. Ferris (1880), 56 Cal. 442, 445 ; People v. Ludwig (1897), 118 Cal. 328, 329 , 50 Pac. 426 . 11.

1910Under such circumstances, appellants not having objected to the giving of said instruction orally, it will be presumed, nothing to the contrary appearing in the record, that they consented to the giving thereof orally as provided in section one of the act of 1903, supra. Elliott, App. Proc. §§709, 712; State v. Preston (1894), 4 Idaho 215 , 221-223, 38 Pac. 694 ; People v. Ferris (1880), 56 Cal. 442, 445 ; People v. Ludwig (1897), 118 Cal. 328, 329 , 50 Pac. 426 . 11.

1910Under such circumstances, appellants not having objected to the giving of said instruction orally, it will be presumed, nothing to the contrary appearing in the record, that they consented to the giving thereof orally as provided in section one of the act of 1903, supra. Elliott, App. Proc. §§709, 712; State v. Preston (1894), 4 Idaho 215 , 221-223, 38 Pac. 694 ; People v. Ferris (1880), 56 Cal. 442, 445 ; People v. Ludwig (1897), 118 Cal. 328, 329 , 50 Pac. 426 . 11.

1910Under such circumstances, appellants not having objected to the giving of said instruction orally, it will be presumed, nothing to the contrary appearing in the record, that they consented to the giving thereof orally as provided in section one of the act of 1903, supra. Elliott, App. Proc. §§709, 712; State v. Preston (1894), 4 Idaho 215 , 221-223, 38 Pac. 694 ; People v. Ferris (1880), 56 Cal. 442, 445 ; People v. Ludwig (1897), 118 Cal. 328, 329 , 50 Pac. 426 . 11.

1905Trogden v. Deckard (1874), 45 Ind. 572, 575 , and cases cited; Mendenhall v. Treadway (1873), 44 Ind. 131, 135, 136 ; Jenkins v. Wilson (1895), 140 Ind. 544, 547 , and cases cited. 5.

1905Trogden v. Deckard (1874), 45 Ind. 572, 575 , and cases cited; Mendenhall v. Treadway (1873), 44 Ind. 131, 135, 136 ; Jenkins v. Wilson (1895), 140 Ind. 544, 547 , and cases cited. 5.