withdrawal instruction in Indiana

1942City of Union City v. Fisher (1930), 91 Ind. App. 672 , 173 N. E. 330 .

1934“It is the law that, where a mandatory instruction is given, which instruction omits some essential element of recovery and which omitted element is a controverted question of fact, such error can only be cured by the withdrawal of the instruction so given.” City of Union City v. Fisher (1930), 91 Ind. App. 672, 675 , 173 N. E. 330 . ..

1942City of Union City v. Fisher (1930), 91 Ind. App. 672 , 173 N. E. 330 .

1934“It is the law that, where a mandatory instruction is given, which instruction omits some essential element of recovery and which omitted element is a controverted question of fact, such error can only be cured by the withdrawal of the instruction so given.” City of Union City v. Fisher (1930), 91 Ind. App. 672, 675 , 173 N. E. 330 . ..

1937In the case of Kraning v. Taggart et al. ante 62, 1 N. E. (2d) 689, 693, the court in commenting on an instruction given which was peremptory in character and erroneous because it lacked one of the material facts essential to a recovery necessary to be proved and for the jury to find in order to entitle the appellee to a *686 recovery, said (p. 71) : “One of the essential elements which appellant insists it was necessary for the jury to find in order to entitle appellee to a verdict at its hands, was the fact that appellee suffered injuries resulting in her damage. ‘When a mandatory instructio

1937In the case of Kraning v. Taggart et al. ante 62, 1 N. E. (2d) 689, 693, the court in commenting on an instruction given which was peremptory in character and erroneous because it lacked one of the material facts essential to a recovery necessary to be proved and for the jury to find in order to entitle the appellee to a *686 recovery, said (p. 71) : “One of the essential elements which appellant insists it was necessary for the jury to find in order to entitle appellee to a verdict at its hands, was the fact that appellee suffered injuries resulting in her damage. ‘When a mandatory instructio

1986Perry v. State (1980), Ind.App., 401 N.E.2d 705 .

1975Nor should the fact that a trial by jury is more costly to the State than a trial without jury be considered as ground for refusing the withdrawal of the waiver, . . .” Floyd v. State (Fla. 1956), 90 So.2d 105, 106 . *405 Accord: State v. Jones (1973), 270 Md. 388 , 312 A.2d 281 ; State v. Blanton (1969), 203 Kan. 81 , 453 P.2d 30 .

1975A substantially similar situation occurred in People v. Melton (1954), 125 Cal. App.2d Supp. 901, 271 P.2d 962 , 46 A.L.R.2d 914 , wherein the defendant, found guilty at a trial without jury of driving a vehicle upon the highway while under the influence of intoxicating liquor, questioned the *404 refusal of the trial court to grant his motion to withdraw his waiver of trial by jury.

1975A substantially similar situation occurred in People v. Melton (1954), 125 Cal. App.2d Supp. 901, 271 P.2d 962 , 46 A.L.R.2d 914 , wherein the defendant, found guilty at a trial without jury of driving a vehicle upon the highway while under the influence of intoxicating liquor, questioned the *404 refusal of the trial court to grant his motion to withdraw his waiver of trial by jury.

1975Nor should the fact that a trial by jury is more costly to the State than a trial without jury be considered as ground for refusing the withdrawal of the waiver, . . .” Floyd v. State (Fla. 1956), 90 So.2d 105, 106 . *405 Accord: State v. Jones (1973), 270 Md. 388 , 312 A.2d 281 ; State v. Blanton (1969), 203 Kan. 81 , 453 P.2d 30 .

1975Nor should the fact that a trial by jury is more costly to the State than a trial without jury be considered as ground for refusing the withdrawal of the waiver, . . .” Floyd v. State (Fla. 1956), 90 So.2d 105, 106 . *405 Accord: State v. Jones (1973), 270 Md. 388 , 312 A.2d 281 ; State v. Blanton (1969), 203 Kan. 81 , 453 P.2d 30 .

1975Nor should the fact that a trial by jury is more costly to the State than a trial without jury be considered as ground for refusing the withdrawal of the waiver, . . .” Floyd v. State (Fla. 1956), 90 So.2d 105, 106 . *405 Accord: State v. Jones (1973), 270 Md. 388 , 312 A.2d 281 ; State v. Blanton (1969), 203 Kan. 81 , 453 P.2d 30 .

1975Nor should the fact that a trial by jury is more costly to the State than a trial without jury be considered as ground for refusing the withdrawal of the waiver, . . .” Floyd v. State (Fla. 1956), 90 So.2d 105, 106 . *405 Accord: State v. Jones (1973), 270 Md. 388 , 312 A.2d 281 ; State v. Blanton (1969), 203 Kan. 81 , 453 P.2d 30 .

1975Williams v. State, supra, 307 N.E.2d at 884 .

1930Union Traction Co. v. Elmore (1917), 66 Ind. App. 95 , 116 N. E. 837 ; Prudential Ins.

1930Union Traction Co. v. Elmore (1917), 66 Ind. App. 95 , 116 N. E. 837 ; Prudential Ins.

1914Buntin v. State (1879), 68 Ind. 38 ; State v. Hood (1907), 63 W.

1914Buntin v. State (1879), 68 Ind. 38 ; State v. Hood (1907), 63 W.

1909Weston v. State (1906), 167 Ind. 324 ; Chicago, etc., R.

1898In the case of Lower v. Franks, 115 Ind. 334 , it was said that “the giving of a fatally erroneous instruction can only be cured by a plain withdrawal of such instruction, and the withdrawal of such instruction will not be presumed, but must be affirmatively shown,” citing a number of cases.

1888Kingen v. State, 45 Ind. 518 ; Toledo, etc., R.