Dissenting Opinion.
Arterburn, J.The appellant was convicted of the charge of manslaughter of her one year old daughter because of failure to provide proper and sufficient medical attention and food to sustain life. The sole reason given in the majority opinion for reversing the conviction is that the court gave what is called a “mandatory” instruction, telling the jury that if they found the evidence proved the facts in the charge *577alleged, they should find the defendant guilty. The instruction given is as follows:
“The Court now instructs you that if you should find that Margaret Pritchard or Ralph Pritchard or either one of them were guilty of cruelty or neglect of Kathy Jean Pritchard and that as a result of such cruelty and neglect beyond a reasonable doubt Kathy Jean Pritchard did sicken, languish and die, then you SHALL find such defendant guilty of involuntary manslaughter.”
It is admitted there is nothing incorrect in the legal statement of this so-called mandatory instruction. It does state the law correctly, but the mere form of language (the majority opinion concludes) is sufficient grounds for reversing this case. The instruction plainly tells the jury what they should do or what their duty is if the indictment is proved. In my judgment, this is a pure technicality, without merit, which reverses a conviction. It is to be deplored that a reversal of a conviction is based upon technical language of such nature alone.
A proper function of a court is to tell the jury what its duty is with reference to the law. Although it is true the constitution says the jury shall have the right to determine the law and the facts, it also places upon the courts in our judicial system under Art. 7, Sec. 1, responsibilities with reference to a trial, including how to properly instruct the jury as to its duties.
I further point out that under the scope of the majority opinion, no mandatory instruction can properly be given to the jury, even though it correctly states the law. Such a principle is as injurious to a defendant as to the State in a criminal case. It cuts both ways, since likewise a court may not instruct a jury, telling it in a mandatory fashion that it should acquit a defendant if it finds the facts to be such as show his acts were in selfdefense in a homicide case, for example. In such a case the court would be infringing on the exclusive *578province of the jury if we accept the theory of the majority opinion that the court cannot tell the jury what its duty is under the law.
If a jury may not be told by the court that if the indictment is proved beyond a reasonable doubt a defendant should be convicted (as'the instruction.in this case), then, likewise, under the purport of the majority opinion by a directed verdict (which, in fact, is a mandatory instruction) it may not tell the jury when it should acquit a defendant, since under the majority opinion, the jury is always the final judge of the law and the facts in a case under the interpretation given to the constitutional provision. If the jury is the “sole” or “exclusive” judge of the law and facts in a criminal case (which the constitution does not say, but which is the effect of the majority opinion) then a court may not set aside a jury verdict which it believes erroneously, under the law and facts, convicted an innocent defendant.
The Constitution did not make the courts impotent, ineffective figureheads. They are created by the Constitution for a proper function. They have a duty to perform in criminal cases, namely, to see that the guilty are punished and the innocent freed in accordáiice with the law. Courts have a duty in a criminal case to tell'a jury in what cases under the law a defendant should be found guilty and in what cases they are innocent. The jury should be informed as to its duty. When instructions are given as to duties, they necessarily have to be in mandatory form or in. the grammatical style of the instruction in this case. Beavers v. State (1957), 236 Ind. 549, 141 N. E. 2d 118.
For these reasons I cannot concur in the majority opinion, since it makes courts impotent in attempting to keep the actions of a jury within, the bounds of the law and constitution. The duty of the court is to protect the innocent from the arbitrary and inflamed actions of a jury, as well as the *579guilty, by instructing it when, under the law, it has a duty to acquit and when it has a duty to find the-'defendant guilty.
Note.—Reported in 230 N. E. 2d. 416.