dissenting.
The State had the burden of proving beyond a reasonable doubt the age of the defendant, which was an essential element of the crime charged. The record discloses that no evidence was offered to prove this element. As the majority opinion concedes, there is no doubt the State was careless in presenting its case. The majority opinion agrees with the State that this oversight may be remedied by gleaning random evidence from the record, from which references to the defendant’s age can be indirectly inferred.
In Watson v. State, 236 Ind. 329, 140 N. E. 2d 109, the court was faced with a case with facts analogous to those in the present case. Despite the fact that the age of the defendant was an essential element of the crime charged, no direct testimony was given at trial concerning his age. The record disclosed that witnesses had referred to the defendant as a “man”; and there was also testimony that the defendant had been seen in a tavern, buying and drinking beer. The jurors were instructed that they could observe the defendant and draw upon their observations of him in determining whether or not the defendant was a person over 16 years of age.
The court, in Watson, found the evidence presented was insufficient to allow a jury to conclude the defendant was above the statutory age. The court noted that while the appearance of the defendant was evidence which could be considered by the jury, the defendant had not been pointed out for that pur*822pose nor had there been opinion testimony of age. The court discounted the reference to the defendant as a “man” as being relevant to an age determination. “Man,” like “boy,” “girl,” or “woman,” is a generic term and does not designate whether a person is above or below a certain age. “Age can be proved without difficulty. The proof of a crime should not be left to a game of guessing.” It is clear the court in Watson did not consider this fact as adding to the sufficiency of the evidence.
As in Watson, the testimony here referred to the defendant as a “man” and to the defendant’s drinking of beer. It is commonly known that persons under 18 years of age frequently purchase and drink beer. The majority opinion finds additional evidence, not present in Watson, which it feels reflects on age. The mention of defendant’s belonging to the Ku Klux Klan, and a reference to an age requirement of 18 for membership in that organization, are, like the rest of the evidence, tenuous. The cumulative effect of such tenuous evidence does not render the evidence sufficient when measured by the standard “beyond a reasonable doubt.” Nor was the defect in the State’s case cured by the giving of proper jury instructions. An instruction to the jury is not evidence and cannot be a factor to be considered in determining sufficiency of the evidence.
In light of the State’s failure to prove an essential element of the crime, I would reverse the conviction.