CONCURRING OPINION I concur in the result, but I cannot concur in the general reasoning that where the trial court fails to instruct "on any phase of the case," counsel for the accused must tender an instruction covering the phase in order to save prejudicial error on appeal.
The question is presented as to just how little a trial judge may instruct the jury in a criminal case and still stay within the limits of subsection 5 of § 9-1805, Burns' 1942 Replacement, which provides as follows: *Page 369
"The court must then charge the jury, which charge, upon the request of the prosecuting attorney, the defendant or his counsel made at any time before the commencement of the argument, shall be in writing and the instructions therein contained numbered and signed by the court. In charging the jury the court must state to them all matters of law which are necessary for their information in giving their verdict. If he present the facts of the case he must inform the jury that they are the exclusive judges of all questions of fact, and that they have a right, also, to determine the law." (Italics supplied.)
It is well settled that, "The burden was upon the state to prove under the plea filed in this case, the sanity of appellant beyond a reasonable doubt and the jury must find that appellant was of sound mind at the time of the commission of the alleged offense beyond a reasonable doubt, and if the jury entertains a reasonable doubt as to the sanity of the accused at the time of the commission of the alleged offense they cannot legally return a verdict of guilty. Walters v. State (1915), 183 Ind. 178, 108 N.E. 583; McHargus v. State (1923), 193 Ind. 204, 139 N.E. 316." Noelke v. State (1938), 214 Ind. 427, 433,15 N.E.2d 950. When a plea of insanity is filed, I believe that the requirements of the statute that "the court must state to them all matters of law which are necessary for their information in giving their verdict," places the mandatory duty on the trial court to instruct on the burden of proof under this issue, even in the absence of a request by counsel for the giving of an instruction covering such matters. Rule 1-7 does not modify or amend the statute, nor require that an instruction be tendered before error can be predicated upon the failure of the court to instruct generally on the burden of proof, although many of the cases hold that this is the only manner of saving error with respect *Page 370 to particular phases, such as giving of instructions on included and lesser offenses.
It would be error for the trial court to fail to instruct upon the burden of proof under a plea of not guilty, and likewise it would be error for the trial court to fail to instruct upon the issues presented by a plea of insanity and the burden of proof thereunder.1
But the trouble with appellant's position here is that this contention was never presented to the trial court in the motion for new trial. Trial counsel for appellant died after the filing of the praecipe for the transcript, and the first time the alleged failure of the trial court to instruct on the issue raised by the plea of insanity is presented is in appellant's brief. The brief does not present any contention that he was represented by such incompetent counsel that it amounts to a denial of due process, or the right to representation by counsel under § 13 of Article 1 of the Constitution of Indiana.
It does not appear that appellant was denied any constitutional right, nor that there may have been a miscarriage of justice when he was convicted, either of which, under the rule suggested in the dissent in Johns v. State (1949), 227 Ind. 737,89 N.E.2d 281, would justify this court in searching the record and reviewing *Page 371 for error not properly saved. For these reasons I concur in the affirmance of the judgment.
Gilkison, J. concurs in this opinion.
NOTE. — Reported in 92 N.E.2d 549.
1 In civil cases the rule is well settled that the duty to instruct generally is mandatory without request. "The duty of the court in this respect is mandatory, and no request is necessary. The giving of general instructions may be dispensed with by consent of the parties, but not otherwise. `It is the duty of the court, in every case in which a general verdict is to be returned, to instruct the jury as to the force and legal effect of the facts which may have been proved within the issues.' It is not a sufficient compliance with the statute simply to state the issues to the jury, but the court should state the law applicable to the case on trial." 3 Lowe, Works' Indiana Practice, 427, § 55.2. See also Cleveland v. Emerson (1912), 51 Ind. App. 339, 344, 99 N.E. 796.