DISSENTING OPINION. I cannot agree with the majority opinion relative to instruction No. 2 tendered by the appellant. I think the instruction as tendered was correct, and that the court committed harmful error in refusing to give it.
It cannot be doubted that a reasonable doubt may arise from the lack of evidence as well as from the evidence, and in many cases it is from the lack of evidence the doubt arises. I think this instruction is particularly applicable in the instant case, and especially when considered in view of the evidence introduced showing other acts of misappropriation than that charged in the affidavit, and the fact that others than the appellant collected money from the patients and also in view of the method of bookkeeping. In none of the instructions of the court was this or a similar instruction given, but *Page 344 on the contrary the court in its instructions Nos. 5 and 7 limited the jury to the evidence introduced. In instruction No. 5 the court used the following language:
". . . You should carefully consider all the evidence in the case and you should consider all the facts, if any, that can be rightfully and reasonably inferred from the evidence and circumstances testified about; you should not indulge in speculation or conjecture, but should only find such facts as are established by the evidence in the case." (Our italics.)
In instruction No. 5 the court said:
". . . If you find from the evidence introduced before you . . . it will be your duty to find the defendant guilty and your verdict will so recite. . ." (Our italics.)
The jury has not only the duty to consider the evidence given, but, if there is a lack of evidence on a material fact which raises a reasonable doubt in their minds of the guilt of the defendant, it is also their duty to consider this fact. And this has been the ruling of this court in a long line of decisions.
In the case of Wright v. The State (1879), 69 Ind. 163, the court, in discussing the question of reasonable doubt, said (p. 165):
"So much of the instructions above set out as limited a reasonable doubt to something which is suggested by, or arises from, or springs out of, the evidence adduced, gave, what appears to us to have been, a too narrow definition of that which is implied by a reasonable doubt. A reasonable doubt may arise from a want of evidence as to some fact having a natural connection with the cause. It has reference to that uncertain condition of the mind which may remain after considering what has not been proven as well as that which has."
In the case of Densmore v. The State (1879), 67 Ind. 306, the court gave an instruction containing the following language: *Page 345
"A reasonable doubt is one suggested by, or arising out of, the proof made, and, after a full and fair consideration of all the evidence, pro and con, remains in the mind, causing some degree of uncertainty as to the alleged crime."
The court in passing upon this instruction said:
"It is thus seen that, according to the charge, it is the "proof made' or `evidence adduced' that is the foundation of a reasonable doubt. This excludes all reasonable doubts that may arise from the lack or want of evidence."
The instruction was held to be erroneous.
In the case of Ridge v. State of Indiana (1923),192 Ind. 639, 137 N.E. 758, an instruction was given which undertook to define reasonable doubt, but failed to mention lack or want of evidence as an element thereof, and the court, upon this point, said (p. 646):
"It will be observed that in said instruction the court states to the jury what evidence is sufficient to remove a reasonable doubt, but nowhere in the instructions of the court does the court inform the jury that a reasonable doubt may arise from the want of evidence as well as from the evidence itself."
In the foregoing case the appellant also tendered an instruction containing the identical question as presented by appellant in his tendered instruction No. 2 at bar; and the court held that it should have been given, and that it was harmful in refusing the same, and the case was reversed.
These and many other cases of this court that might be cited all agree on the foregoing statement of the law, and I cannot consent to the proposition that instruction No. 3, as given by the court, covers the proposition of law as contained in instruction No. 2 tendered by appellant. There is a total failure in instruction No. 3 to mention "lack or want" of evidence as an element of reasonable doubt, and, merely, to say, as said in instruction *Page 346 No. 3, "The defendant in this case has entered a plea of not guilty to the offense with which she is charged in each count of the affidavit; this plea places upon the State the burden of proving beyond a reasonable doubt every material averment in at least one count of the affidavit before the defendant can be found guilty, and a failure of the State to prove any one of such material facts will entitle the defendant to an acquittal"; and, further, as said in said instruction, to say, ". . . if, however, you find that all the averments of the affidavit have been proven beyond a reasonable doubt, then you should find the defendant guilty of the offense so proven," is not equivalent to saying that a reasonable doubt may arise from "the evidence or from the lack or want of evidence."
Neither do I think that that part of instruction No. 2 tendered by the appellant which says that ". . . and this is true, whether such reasonable doubt arises from the evidence produced or from the lack of evidence sufficient to produce a conviction in your minds that is free from all reasonable doubt" is meaningless or misleading, as the majority opinion holds. I cannot see how, or in what manner, it could confuse the jury. It certainly states that a reasonable doubt of the guilt of the appellant may arise from the lack of evidence as well as from the evidence produced, and this is a correct statement of the law.
It was the right of appellant to have a correct instruction given upon the subject of reasonable doubt, and one which did not exclude the element of "lack or want of evidence." This was not done. The one tendered included this element, and should have been given. The decisions of this court have so declared, and I see no reason why, at this time, we should not follow the rule as heretofore laid down. It is based upon sound reason, and should be adhered to. It is of great importance *Page 347 to a defendant in a criminal case to be properly instructed by the court upon the question of reasonable doubt, and in the instant case this was not done, although the defendant (appellant) tendered a proper instruction which was refused by the court. In my judgment, the rights of the appellant were not properly protected and reversible error was committed in refusing to give instruction No. 2 as tendered by her,
TREMAIN, J.
I concur in the foregoing dissenting opinion.