dissenting.
I respectfully dissent. The majority has concluded that Fuquay's tendered instruction regarding the jury's right to determine the law was appropriately rejected by the trial court because it is an erroneous statement of the law. I respectfully disagree. Our supreme court expressly approved an instruction almost identical to Fuquay's in Travis v. State (1986), Ind., 488 N.E.2d 342. In its brief, the State has conceded that Fuquay's tendered instruction is a correct statement of the law. Moreover, my review of the law in this area has led me to conclude that Fuquay's tendered instruction is a correct statement of the law. Therefore, I believe that the trial court's failure to instruct the jury regarding its right to determine the law was reversible error requiring a new trial.
Indiana Constitution Art. 1, § 19 provides:
In all criminal cases whatever, the jury shall have the right to determine the law and the facts.
In Schuster v. State (1912), 178 Ind. 320, 99 N.E. 422, our supreme court stated:
This section [Art. 1, § 19] of the Constitution declares in the broadest and most imperative terms that in all criminal cases the jury shall have the right to determine the law as well as the facts. It is the duty of the court to instruct the jury as to the law of the case, and at the same time inform them that they are the judges of both the law and facts. Instructions in criminal cases are not to bind the conscience of the jurors, but to enlighten their judgment.
*159178 Ind. at 323, 99 N.E. at 424 (emphasis added). In Steinbarger v. State (1948), 226 Ind. 598, 82 N.E.2d 519, our supreme court noted:
Under this constitutional provision [Art. 1, § 19] the jury is the sole judge of both the law and the facts in the case. The courts may not usurp or infringe this fundamental right. The right may not be modified or minimized by instructions or otherwise.
226 Ind. at 603, 82 N.E.2d at 519.
The majority first relies on Hoffa v. State (1924), 194 Ind. 300, 142 N.E. 653. The instruction approved of by the Hoffa court, cited by the majority on page 156, was not the only instruction given to the jury regarding the jury's right to determine the law. The Hoffa court went on to hold:
In the case at bar, the jury were plainly told in other instructions of their right to determine the law, and, that although the court's instructions and decisions of the higher courts were entitled to great respect, they were not binding on the jury, if they determined the law otherwise. The instruction under consideration was intended only to advise them how to determine the law, and they were informed in other instructions that this and other instructions were only advisory.
194 Ind. at 303, 142 N.E. at 653 (Emphasis added). The majority next relies on Beavers v. State (1957), 236 Ind. 549, 141 N.E.2d 118. The Beavers court concluded:
To summarize: Although the constitution gives the jury the right to determine the law in criminal cases, it does not follow, nor is it true, that it is an 'exelu-sive' right. It is a coordinate right to be exercised with that of the judge or court. Neither does it follow, nor is it true, that it is totally irresponsible in determining the law, and has no duty in the exercise of that right to seek the law from the best and most reliable source available, namely the court. A jury may not cast aside such advice or instructions lightly, and should be so instructed in view of their general lack of such knowledge. A consciousness of their responsibility, oath and duty in that respect is an aid to the proper performance of their constitutional duty. Nevertheless upon final analysis after being so informed and cautioned the jury has the power to go its own way, and determine the law for itself when it renders a verdict.
236 Ind. at 564, 565, 141 N.E.2d at 125 (Emphasis added). I believe that Fuquay's tendered instruction constitutes a correct statement of the law under Hoffa and Beavers.
The State concedes that Fuquay's tendered instruction is a correct statement of the law as well it should as a nearly identical instruction was approved by our supreme court in Travis, 488 N.E.2d 342. The Travis court affirmed the trial court's rejection of the instruction because its substance was contained in the following instruction given to the jury:
You are also the finders of the law that applies to this case, being guided by the instructions given by the judge. You should, however, find both the law and the facts as they are, not as you would like them to be.
488 N.E.2d at 346.
In the present case, the State asserts that the trial court properly refused Fu-quay's tendered instruction, not because it was erroneous, but because its substance was contained in the following instruction given to the jury:
The unsworn statements or comments of counsel on either side of the case should not be considered as evidence in the case. It is your duty to determine the facts from the testimony and evidence admitted by the court and given in your presence, and determine the law from these instructions and find your verdict accordingly. You should disregard any and all information that you may derive from any other source.
I disagree with the State. I believe the only reasonable interpretation of this instruction is that it charges the jury with the duty to determine the law solely from the trial court's instructions and render its verdict accordingly. I do not believe that this instruction informs the jury of its con*160stitutional and fundamental right to determine the law in this criminal case. Moreover, I have carefully reviewed all of the trial court's instructions to the jury and have concluded that no instruction informs the jury of its right under Ind. Const., Art. 1, § 19 to determine the law.
I respectfully disagree with the majority that Fuquay's tendered instruction "is tantamount to telling the jury it could do whatever it wanted to in determining the law." (p. 156.) Fuquay's instruction advises the jury that it "should give the Court's Instructions respectful attention" and that "the instructions given are for your guidance and information and you should give the instructions such consideration and respect as to which you deem they are entitled." Id. I do not believe that this language is accurately interpreted as instructing the jury that it is the exclusive judge of the law. Nor do I believe this language can accurately interpreted as inviting the jury to act capriciously upon a whim or prejudice. I believe the instruction correctly informs the jury of its coordinate right, to be exercised with the trial court, to determine the law in this criminal case.
That Fuguay's instruction informs the jury that the court's instructions are not necessarily binding upon it and that the jury has the right to independently determine the law to be different from the instruction of the trial court is not objectional. Such is a correct statement of the law. Travis, 488 N.E.2d 342, Beavers, 141 N.E.2d 118, Hoffa, 142 N.E. 653. Similarly, that Fuquay's tendered instruction can be interpreted as permitting the jury-after respectful consideration of the trial court's instructions-'"to do its own thing" and determine the law for itself is also not objectional. Such is quite simply the ultimate effect and danger of the fundamental constitutional right of the jury to determine the law in Indiana criminal cases.
Indiana Constitution, Article 1, § 19 has been the subject of a great deal of criticism. Our supreme court has substantially attenuated the right of jurys to determine the law in criminal cases under Ind. Const., Art. 1, § 19 by judicial modification. Wyley v. Warden (4th Cir.1967), 372 F.2d 742. The court in Beavers, 136 Ind. 549, 141 N.E.2d 118, criticized Art. 1, § 19 of our Constitution noting:
Indiana and Maryland are today the sole survivors of this archaic constitutional provision that a jury may determine the law in criminal cases.
* * * * * *
'Indiana may claim the dubious distinction of giving the outmoded relic its widest present day application.'
236 Ind. at 556, 141 N.E.2d at 121. (Citations omitted.)
Maryland's jurists have similarly criticized the provision in its state's constitution that affords to the jury the right to determine the law in criminal cases. Wyley, 372 F.2d 742. These jurists have 1) called this provision, an anomalous situation' which 'should not be permitted to remain as a blight upon the administration of justice in Maryland; 2) declared it to be 'archaic, outmoded and atrocious;' and 3) described the provision as the 'Constitutional thorn in 'the flesh of Maryland's body of Criminal Law.' 372 F.2d at 745, 746. (Citations omitted.) My review of Maryland's constitution reveals that this abhorant provision plagues that state yet today.
We have a sworn duty to uphold the Indiana Constitution complete with any outmoded, archaic, and atrocious constitutional relies it may contain. Regardless of how repugnant Ind. Const., Art. 1, § 19 may be, we must uphold the attenuated, judicially modified right of Indiana juries to determine the law in criminal cases.
I agree with the majority that criminal defendants are entitled, upon tendering an appropriate instruction, to have the jury instructed regarding its right to determine the law in criminal cases as guaranteed by Ind. Const. Art. 1, § 19. Because I have concluded that Fuquay's tendered instruction regarding this right constitutes a correct statement of the law which has been expressly approved of by our supreme court, I must also conclude that the trial court has committed reversible error by failing to inform the jury of its constitu*161tional and fundamental right to judge the law in this case. Therefore, I would reverse and remand for a new trial.