ON PETITION FOR REHEARING. In his petition for rehearing, the appellant earnestly contends that the instruction concerning the testimony of character witnesses, which contained the statement that "the object, 10. and only object, for the admission of these opinions is for you to consider them, together with all the other evidence in this cause, to determine whether or not the defendant is guilty or innocent, as charged," was erroneous and prejudicial to the rights of the appellant. As pointed out in the opinion, the instruction is in all substantial respects identical with the one approved in Ross v. State (1933), 204 Ind. 281,182 N.E. 865. In that case it was said concerning the instruction (p. 297): "We find nothing objectionable *Page 175 in the instruction. It states the law correctly and properly clarifies the province of testimony of character witnesses." In that case, however, the jury was not charged with the responsibility of fixing the punishment in the event they found the defendant guilty. The appellant is correct in the contention that in cases where the jury fixes the punishment it may consider evidence of good character in determining what the penalty shall be. Scherer v. State (1919), 188 Ind. 14, 121 N.E. 369.
It is clear from the language of the instruction that its purpose was to advise the jury as to the weight and effect to be given to evidence of good character in determining guilt or 2. innocence, and it is not unreasonable to conclude that the jury so understood it, and did not understand that, after a determination of guilt, they were precluded from considering the character of the defendant in determining the amount of punishment. Neither the state nor the appellant tendered an instruction, and the jury was not instructed, as to the matters to be taken into consideration in fixing the punishment. The verdict fixed the penalty at $1 fine in one case and $100 fine in the second case, without imprisonment in either case, under a statute which permitted a maximum punishment of $100 fine and six months' imprisonment in each case. In view of the small penalty, it cannot be reasonably concluded that the jury failed to take the character evidence into consideration. The penalty inflicted is not substantially above the minimum. See Gross v. State (1917), 186 Ind. 581, 117 N.E. 562.
The opinion is not to be construed as holding that an incorrect instruction will not be considered prejudicial unless the complaining party tenders a correct instruction. If the jury had been instructed that, in fixing the amount of punishment, they were not to consider evidence of previous good character, another question would *Page 176 be presented; but, from the language of the instruction complained of, we conclude that the jury must have understood that it referred only to the effect to be given the testimony of the witnesses in the determination of guilt or innocence.
The petition for rehearing is denied.