Court Instructions to Jury before Deliberation

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Court Instructions to Jury before Deliberation

Postby admin » October 31st, 2010, 5:03 pm

INSTRUCTION NO. 1A
Ladies and Gentlemen of the Jury and the alternate jurors; it is now the Court's duty to reread to you the instructions given you when you were sworn and to give you some additional instructions pertaining to this case.

INSTRUCTION NO. 1
Ladies and Gentlemen of the Jury and Alternate Jurors:
It is the duty of the Court to instruct you in writing at this time concerning matters of law which are for your information in giving your verdict.

In discharging this duty the court has no right to assume, and does not assume that any fact or facts will be established or not established, it being your exclusive right and duty under the constitution of the State of Indiana to determine from all of the evidence what has and what has not been proven.

As a matter of fact, the Court now so instructs you, in this a criminal case, you are the exclusive judges of both the law and the facts. The instructions of the Court are advisory only, and you may disregard them entirely and determine what the law is for yourselves; and if you find that any instruction does not or that any instructions do not state the law correctly, it is your province and your duty to decide the case according to the law as you shall find it to be.

If, however, you shall have no well defined opinion as to what the law is relating to any particular matter or matters in issue in this case, then, in determining the law, you should give the instructions of the Court respectful consideration.

INSTRUCTION NO. 2
While the Constitution of this State makes the jurors the judges of the law as well as of the facts, this does not mean that the jurors may willfully and arbitrarily disregard the law. It means that jurors under their oaths should honestly, justly and impartially judge the law as it exists. It does not mean that jurors may so judge the law in any case so as to make it null and void and of no force, but that they shall so judge the law as to give it a fair and honest interpretation, to the end that the law in each and every case may be fairly and honestly enforced.

The facts must be judged and found by the jury from a careful consideration of all the testimony given by the witnesses in the case and under your oaths you have no right to arbitrarily disregard either the law or the facts in this case.

INSTRUCTION NO. 3
It is not practical and the Court has not attempted to embody all matters of law applicable to this case in any one instruction; and in considering any one instruction you should construe it in connection with, and in the light of, every other instruction given; and so considering and construing, apply the rules or principles of law stated therein to all the evidence admitted during the trial to which you may find the instruction to be applicable.

INSTRUCTION NO. 4
In this case the defendants, Gertrude Baniszewski alias Gertrude Wright, Paula Marie Baniszewski, Stephanie Baniszewski, John Stephan Baniszewski, Richard Hobbs and Coy Hubbard are charged with First Degree Murder by an indictment returned by the Grand Jury for the County of Marion, State of Indians, and filed in the Criminal Court of said Marion County, Division Two, which indictment reads as follows:

INSTRUCTION NO. 5
You will be permitted to take the indictment with you to the jury room when you retire to deliberate on your verdict, but you are instructed that such indictment is submitted to you only for the purpose of informing you of the nature of the charge, It is not to be used or considered by you as evidence of any fact in issue.

INSTRUCTION NO. 6
The defendant, Stephanie Baniszewski, is not being tried at this time, You will return no verdict as to defendant, Stephanie Baniszewski.

INDICTMENT FOR FIRST DEGREE MURDER
The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that Gertrude Baniszewski alias Gertrude Wright, Stephanie Baniszewski, John Stephan Baniszewski, Richard Hobbs and Coy Hubbard on or about the 26th day of October, A,D, 1965, at and in the County of Marlon and in the State of Indiana, did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder Sylvia Marie Likens, a human being, by then and there unlawfully, feloniously, purposely and with premeditated malice, strike, beat and kick at and against the body of the said Sylvia Marie Likens and did then and there and thereby inflict mortal wounds on and upon the body of the said Sylvia Marie Likens, of which mortal wounds the said Sylvia Marie Likens then and there and thereby died.

And so the Grand Jurors aforesaid, upon their oaths aforesaid, do say and charge that the said Gertrude Baniszewski alias Gertrude Wright, Paula Marie Baniszewski, Stephanie Baniszewski, John Stephan Baniszewski , Richard Hobbs and Coy Hubbard in the manner and form and by the means aforesaid did unlawfully, feloniously, purposely and with premeditated malice kill and murder the said Sylvia Marie Likens, then and there being . . . . contrary to the form of the statute in such case made and provided, and against the pence and dignity of the State of Indiana.

INSTRUCTION NO. 8
To this indictment the defendants have entered a plea of not guilty, and upon the issues thus joined the burden rests upon the State of Indiana to prove to each juror beyond a reasonable doubt every material allegation of the indictment - or to prove to each juror beyond a reasonable doubt all of the essential elements of the crime of Murder in the Second Degree and Manslaughter as covered in the indictment, The definitions and essential elements of the crimes charged in and covered by the indictment will be given and stated in other instructions.

In other words, the proof of the commission of a crime is not complete unless each element thereof is proven and the doctrine of reasonable doubt applies to each element.

INSTRUCTION NO. 10
In addition to his plea of not guilty there has been filed on behalf of the defendant, Richard Hobbs, a Suggestion of Insanity as follows:

SUGGESTION OF INSANITY OF THE DEFENDANT RICHARD DEAN HOBBS.
Comes now James G. Nedeff, Public Defender and Attorney for the Defendant, Richard Dean Hobbs, and respectfully shows the Court,
1. That the defendant Richard Dean Hobbs, is a co-defendant in the above entitled cause and that he is a minor being of the age of 15 years, being born on November 7, 1950, at Indianapolis, Indiana.
2. That this Public Defender, has made an intensive and extensive study of the First Degree Murder Charge now pending against this defendant, conference with the defendant, with his father, neighbors, jail and hospital records, witnesses, police reports and numerous sources of information, and this affidavit and public defender has reasonable grounds to believe that the defendant, Richard Dean Hobbs, may have been an insane person, prior to, October 26, 1965, on said date and subsequent to said date, and that the defendant, may be unable to sufficiently comprehend or understand the nature of the charge now pending against him or to make his defense thereto.
3. That this Court should appoint two (2) competent and disinterested physicians who should examine the defendant upon his sanity on or about October 26, 1965, and as to his sanity now and to testify concerning the same at a hearing or at the trial of this cause.
4. That said doctors should determine if the defendant, Richard Dean Hobbs, was suffering from a mental disorder on or about October 26, 1965, and if the defendant has sufficient comprehension to now stand trial and understand the proceedings therein and assist in his defense.
James G. Nedeff
Public Defender

INSTRUCTION NO. 9
In addition to her plea of not guilty there has been filed on behalf of the defendant, Gertrude Baniszewski alias Gertrude Wright an Answer in Five Paragraphs, as follows:

ANSWER IN FIVE PARAGRAPHS
Comes now the defendant in the above entitled cause, by Counsel, and for Answer to the indictment charging her with First Degree Murder, alleges and says:

I. That she denies each and every material allegation in said indictment and pleads not guilty to the same.
Respectfully submitted,
William C. Erbecker
Attorney for Defendant

II. Comes now the defendant in the above entitled cause, by Counsel, and for further and second special answer to the indictment heretofore filed herein against her, alleges and says:
1. That at the time of the circumstances alleged in the indictment herein, she was of unsound mind.
Respectfully submitted,
William C. Erbecker
Attorney for Defendant

III. Comes now the defendant in the above entitled cause, and for third and special paragraph of answer to the indictment heretofore filed against her, alleges and says:
1. That at the time of the circumstances herein alleged in the indictment heretofore filed and returned against her, she did not have sufficient mental capacity to form an intent to commit the crime as herein charged; that she suffered and still suffers from a mental illness that prevented her from exercising her free will and volition at the time of the circumstances alleged in the indictment filed herein; that she suffers and still suffers psychiatric disorders which prevented her from fully and completely knowing and understanding the nature and cause of the accusation now pending against her, and which now prevents her from fully and completely understanding the nature and cause of the accusation now pending against her, and because of the aforesaid psychiatric condition, she does not now have sufficient mental capacity to properly, fully and completely assist her Attorney in the preparation of a defense to the charge of First Degree Murder now pending against her in this Court.
Respectfully submitted,
William C. Erbecker
Attorney for Defendant

IV. Comes now the defendant in the above entitled cause, and for further and fourth special paragraph of answer to the indictment heretofore filed against her, alleges and says:
1. That at the time of the circumstances alleged in the indictment heretofore returned and filed and pending against her in this Court, her will power was so dominated and impelled by such psychiatric disorder and disease that she did not fully, thoroughly and completely understand the nature of the acts with which she is charged herein, and that any acts or omissions by her, if any occurred, were caused by an irresistible impulse to commit them or an irresistible impulse to permit the continuance of said acts by others, and that she had no will power to resist and overcome them, because of her mental derangement at the time and place of the crime charged herein in the indictment now pending in this Court.
Respectfully submitted,
William C. Erbecker
Attorney for Defendant

V. Comes now the defendant in the above entitled cause, by Counsel, and for further and fifth special paragraph of answer, alleges and says:
1. That at the time of the circumstances alleged in the indictment charging her with First Degree Murder herein, she was and is now possessed of the following psychiatric infirmities, namely -
(a) Her general symptomatology and mental status suggested a diagnosis of a psycho-neurotic type of personality structure; and,
(b) She was vague in terms of the events leading to her arrest. She indicated that she had been 'sick in bed' and didn't know what all her children were doing at that time; and,
(c) During the several interviews, the patient was obsessed by her physical symptoms; and,
(d) The patient stated that she had always been 'nervous', and that in years past she had seen physicians because of her 'nerves'. Many years ago she was hospitalized at a general hospital, and,
(e) Many times the patient made reference to the fact that she felt 'numb and tingly all over', and that she was afraid that she was going to choke, or could not breathe.
2. That as a result thereby, defendant was mentally incompetent at the time of the alleged crime with which she is charged, and is likewise mentally incompetent at the present time.

WHEREFORE, defendant prays the Court that she be discharged and found not guilty of the crime of First Degree Murder as charged herein.
Respectfully submitted,
William C. Erbecker
Attorney for Defendant

INSTRUCTION NO. 11
In addition to his plea of not guilty there has been filed on behalf of the defendant, John Stephan Baniszewski, his Special Plea of Insanity as follows:

INSTRUCTION NO. 12
In addition to his plea of not guilty there has been filed on behalf of the defendant, Coy Hubbard, his Special Plea of Insanity as follows:

INSTRUCTION NO. 13
To these Special Pleas, the State of Indians by the Prosecuting Attorney, has filed a reply in general denial.
This Reply reads as follows:
STATE'S REPLY IN GENERAL DENIAL TO PLEAS OF INSANITY

Comes now the State of Indiana by Noble B. Pearcy, Prosecuting Attorney for the 19th Judicial Circuit and by way of reply to the pleas of insanity filed by some of the defendants herein, says:
That it denies that said defendants were insane on October 26, 1965 and further denies that said defendants are insane now.
Noble R. Pearcy, Pros. Atty.
Leroy K. New
Deputy Prosecuting Attorney

INSTRUCTION NO. 14
You will be permitted to take the Answer in Five Paragraphs and Suggestion of Insanity with you to the Jury Room when you retire to deliberate on your verdict; but you are instructed that such Answer in Five Paragraphs and Suggestion of Insanity are submitted to you only for the purpose of informing you of their nature. They are not to be used or considered by you as evidence of any fact in issue, and the fact that Answer in Five Paragraphs and Suggestion of Insanity have been filed is no evidence of the truth of their allegations and are not to be considered by you as evidence of the truth of such allegations.

The reply in general denial filed on behalf of the State of Indiana is merely a denial of the allegations of the Special Pleas of Insanity and is not to be considered by you as evidence of any fact in issue.

INSTRUCTION NO. 15
As previously stated, the defendant, Gertrude Baniszewski alias Gertrude Wright has filed Answer in Five Paragraphs, and the defendants, Richard Hobbs, John Stephen Baniszewski, and Coy Hubbard have filed Suggestion of Insanity and the burden is therefore placed upon the State to prove the sanity of the defendants beyond a reasonable doubt; and if the jury entertains a reasonable doubt as to the sanity of the accused at the time of the alleged commission of the offense, you cannot under the law of the State return a verdict of guilty and the defendants, Gertrude Baniszewski, alias Gertrude Wright, Richard Hobbs, John Stephen Baniszewski and Coy Hubbard, or any or all of them as the case may be, should be acquitted.

INSTRUCTION NO. 16
The Statute of the state of Indiana relating to the defense of insanity in so far as applicable to the issues in this case, reads as follows:
"When the defendant in a criminal cause desires to plead that he was of unsound mind at the time the offense charged was committed, he himself, or his counsel, must set up such a defense specially in writing, and the prosecuting attorney may reply thereto by a general denial in writing.

'At the trial of such cause, evidence may be introduced to prove the defendant's present sanity or insanity, or his sanity or insanity at the time at which he is alleged to have committed the act charged in the affidavit or indictment. When an insanity defense is pleaded, the Court shall appoint two (2) or three (3) competent disinterested physicians to examine the defendant, and to testify at the trial. Such testimony shall follow the presentation of the evidence for the prosecution and for the defense, including testimony of medical experts employed by the State of by the defense, if any. The medical witnesses appointed by the Court may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such medical witnesses.'

'In all cases where a plea of insanity is interposed as a defense, it shall be the duty of the jury or the Court, if tried by it, if the defendant is found not guilty, to find, and the jury or Court shall be required to find, whether the defendant committed the act charged in the indictment or affidavit, and if so, whether the defendant was sane or insane at the time of the of commission of the act, and whether not guilty because he was insane at the time of the commission of an act.'

INSTRUCTION NO. 17
Under the law of the State of Indiana a person of unsound mind cannot be convicted of any crime; and it does not matter that caused mental unsoundness; and if, at the time of the alleged commission of the offense charged, the defendant was a person of unsound mind from any cause, he should be acquitted; but although there may be some mental derangement, still if the jury trying said person should find beyond a reasonable doubt that such person at such time had mental capacity sufficient to adequately comprehend the nature and consequences of the particular acts charged in the indictment, and a mind sufficient to form an intention to consult the crime or crimes charged, and unimpaired will power sufficient to control an impulse to commit said crime, he is not entitled to acquittal upon the grounds of mental incapacity.

INSTRUCTION NO. 18
The Court instructs you that if a person is insane at the time of the crime or crimes charged are alleged to have been committed, and incapable, because of insanity, of any kind of determining right from wrong or on account thereof unable to adequately comprehend the nature and consequences of his acts and unable to exert unimpaired will power sufficient to control an impulse to commit the crime charged, he cannot be held to be guilty of any criminal offense no matter how or in what manner the insane condition was produced.

INSTRUCTION NO. 19
The statute of the State of Indiana which defines the crime of murder in the first degree in-so-far as applicable to the indictment in this case reads as follows:
'Whoever purposely and with premeditated malice, kills any human being is guilty of murder in the first degree, and on conviction shall surfer death or be imprisoned in the State Prison during life.'

INSTRUCTION NO. 20
The Statute of the State of Indiana, defining the crime of murder in the second degree which is one of the degrees of homicide covered by the indictment reads as follows:
'Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and, on conviction, shall be imprisoned in the State Prison during life.'

INSTRUCTION NO. 21
The Statute of the State of Indiana defining the crime of manslaughter, which is another of the degrees of homicide, covered by the indictment, reads as follows:
'Whoever voluntarily kills any human being without malice, expressed or implied, in a sudden heat, or involuntarily, in the commission of some unlawful act, is guilty of manslaughter, and, on conviction, shall be imprisoned not less than two (2) years nor more than twenty-one (21) years}.'

INSTRUCTION NO. 22
You are instructed that the burden rests upon the State to prove each and every element of some one of the several degrees of homicide as charged in or covered by the Indictment beyond a reasonable doubt.

In other words, the proof of the commission of a crime is not complete unless each element thereof is proven and the doctrine of reasonable doubt applies to each element.

INSTRUCTION NO. 23
Malice, in law, and as used in the statute defining murder, has a technical meaning, including not only anger, hatred and revenge, but every unlawful and unjustifiable motive. It is not confined to ill-will towards one or more individual persons, but is used and intended to denote an action growing from any wicked and corrupt motive - a thing done with bad or malicious intent - where the act has been attended by such circumstances as carry in them the plain indication of a heart without regard for social duties, and fatally bent on mischief; and therefore malice may be implied from any deliberate and cruel act against another, however sudden.

INSTRUCTION NO. 24
Malice may be proved by direct evidence such as prior threats, assaults or seeking an opportunity to perpetrate the act. This is called express malice. Malice may also be implied from the act of killing if the killing is done purposely and without legal excuse or sufficient provocation; and if the act is perpetrated with a deadly weapon so used as to likely produce death, the purpose to kill may be inferred from the act of killing.

INSTRUCTION NO. 25
As heretofore stated, murder in the first degree involves the elements of malicious intent and premeditation. Malice has already been defined. To constitute premeditation, there must be time for deliberate thought after the mind conceives the idea of taking life, but there need be no appreciable space of time between the formation of the intent to kill and the attempted execution of the design, They may be as instantaneous as successive thoughts, if the design to kill it fully formed and the intent meditated upon, it matters not how soon the purpose is carried into execution, but the length of time intervening may be considered as tending to prove the existence or non-existence of premeditation.

INSTRUCTION NO. 26
Proof of motive on the part of the State is not indispensable or essential to a conviction. While the motive to commit a crime may be shown as a circumstance to aid in fixing the crime on the defendant, yet the state is not required to prove a motive on the part of the defendant in order to convict him. But in any case evidence establishing or tending to establish motive or lack of motive upon the part of the accused to commit the crime with which he is charged is proper, and should be considered by the jury.

INSTRUCTION NO. 27
Although the killing may be unlawful, and done purposely, yet if it is done in a sudden heat of passion caused by a sufficient provocation, and in the absence of express malice, malice is not implied from the fact, and the offense is manslaughter. However, mere words, no matter how abusive or insulting, cannot justify the taking of human life and are not in and of themselves sufficient provocation, if there be sufficient time after the provocation is offered for passion to subside, and for reason to interpose and assert its way.

INSTRUCTION NO. 28
The law presumes the defendants and each of them in this case to be innocent of the commission of any crime and they are presumed to be innocent of the offense charged in the indictment, or any offense therein embraced; and this presumption continues throughout the trial step by step.

You should reconcile the evidence in this case upon the theory of the innocence of the defendants and each of them if it can reasonably and consistently be done, and there should be no conviction of the defendants unless each member of the jury is convinced beyond a reasonable doubt of their guilt; for the law contemplates and indeed demands, the concurrence of twelve minds in the conclusion that the accused is guilty; and so long as you or any of you have or entertain a reasonable doubt as to the guilt of the defendants and each of them, you should resolve that doubt their favor and they should not be convicted.

INSTRUCTION NO. 29
At this point the Court desires to explain to you what is meant by the words "reasonable doubt", and instructs you concerning the rule of law which requires that a person charged with the commission of crime be proved guilty beyond a reasonable doubt before he can be convicted. A reasonable doubt, as the words imply, is such a doubt as may reasonably arise from the evidence or from the lack of evidence, or from a conflict in the evidence concerning a given fact or issue. The rule of law touching reasonable doubt is a practical rule for the guidance of practical men and women when engaged in the solemn duty of assisting in the administration of justice. It is not, therefore, a rule about which there is anything whimsical or imaginary. It is not a mere possibility of error or mistake that constitutes a reasonable doubt - for despite every precaution that may be taken to prevent it, there may be in all matters pertaining to human affairs a mere possibility of error. The rule touching reasonable doubt can be, and is thus stated, for your guidance; if you and each of you are so convinced by the evidence, and considering all the facts and circumstances in the evidence as a whole, of the guilt of the defendants that as prudent men and women you would feel safe to act upon such conviction in a matter of the highest concern and importance to your own dearest and most important interests, where there was no compulsion or coercion upon you to act at all, then you will have attained such degree of certainty as excludes reasonable doubt and authorizes conviction of such defendants. If you are not so convinced by all of the facts and circumstances in the evidence as a whole, of the guilt of the defendants, you should acquit them. If, on the other hand, you are so convinced of the guilt of the defendants, you should not acquit them.

INSTRUCTION NO. 30
The doctrine of "reasonable doubt" applies to the law as well as to the facts established - or not established by the evidence, and you should give the defendants the benefit of any reasonable doubt you may have as to the law.

INSTRUCTION NO. 31
You will understand that you, and you alone, as jurors, are to determine the weight and credit to be given the testimony of the witnesses. These are things for you to determine in your search and endeavor to find the truth of the case, and your final decision must rest solely upon the law and evidence of the case without any reference to the probable consequences.

INSTRUCTION NO. 32
You are the Judges of the credibility of the witnesses, and the weight be given to their testimony. You should reconcile the evidence in this case upon the theory that each and every witness has spoken the truth, if it can be reasonably done. You should not disregard the testimony of any witness without due consideration and without just cause. If you find such conflict in the testimony of the witnesses that you cannot reconcile their testimony, then it is province to choose when you will believe and whom you will not believe; and in determining what evidence you will receive and what you will reject, you may take into consideration the interest, if any, that any witness has in the result of this trial; his or her manner or demeanor upon the witness stand; the probability of his or her testimony; his or her means of knowing the things of which he or she testified; his or her relationship, if any, to the accused or the deceased, or other interested persons if any; and such other considerations as appear right and proper to you in arriving at the truthfulness of each and every witness.

INSTRUCTION NO 33
If you should believe from the testimony in this case that any witness or witnesses have willfully and intentionally testified falsely to any material fact in the case, intending by such false testimony to mislead and deceive as to the truth in the case, you may under such belief disregard the whole or any part of the testimony of such witness or witnesses, if in your opinion, you are justified under your oath in so doing, and except insofar as the same may be corroborated by other credible testimony.

INSTRUCTION NO. 34
Ladies and Gentlemen of the Jury and the Alternate Jurors, you have been given the foregoing written preliminary instructions of the Court. The Supreme Court has laid down a rule that when the Jury is sworn the Court shall instruct in writing as to the issues for trial, the burden of proof, the credibility of witnesses a.? ? ? ? ? of weighing the testimony to be received.

When the evidence is concluded and arguments are had the Court will give you additional written instructions. These preliminary instructions and the additional instructions yet to be given constitute the written instructions of this case.

INSTRUCTION NO. 35
If after considering all of the evidence the argument of counsel, and the instructions given you by the Court, you should entertain any reasonable doubt of the guilt of the defendants, and each of them, as charged or covered in the Indictment it would be your duty to acquit them, and each of them or all of them, even if you should believe from the evidence, that they or any of them or all of them have been shown to be guilty of wrong doing, or of other offenses not charged or covered in this indictment.

INSTRUCTION NO. 35 1/2
You are further instructed that if the State of Indiana has failed to introduce the testimony of any available witnesses, and has further failed to excuse or explain their absence to your satisfaction, you have a right to presume that such witnesses, if called to testify, would have testified against the State of Indiana in this case.

INSTRUCTION NO. 36
It is your duty to determine the facts of this case from the evidence given in court in your presence, and to disregard any and all information that you or any of you may have derived from any other source.

INSTRUCTION NO. 37
During the course of the trial, certain objections were made to certain questions propounded to witnesses which objections were sustained by the Court. This was the Court's responsibility, and you should not attempt to determine or consider what the answers to any such questions might or might not have been. You should not be influenced in any way by the questions to which objections were sustained and should disregard them entirely.

INSTRUCTION NO. 38
During the course of the trial, the Court ordered stricken from the record certain statements made by certain witnesses which were not responsive to questions propounded, or which were not deemed proper for other reasons. This also, was the Court's responsibility, and you should not consider or be influenced in any way by the statement or testimony of any witness which was so ordered stricken from the record.

INSTRUCTION NO. 38 1/8
During the trial of a law suit, it often becomes the duty of counsel for the parties to object to questions or to evidence, and I instruct you that you shall not take into consideration against such party either such objections or the number of them, nor permit yourselves to be in any way influenced by such objections against the parties.

INSTRUCTION NO. 38 3/16
Lawyers have a right to raise objections, and it is frequently their duty to do so, but nothing said in favor of or against an objection, or any ruling upon it, should have any effect upon a juror's determination of the case. Verbal exchanges between counsel or between the Court and counsel are in the same category. These statements are not evidence and must in no way affect your judgment on the matters to be decided by you.

INSTRUCTION NO. 38 1/4
The Court further instructs the jury, in connection with your determination of the weight of the evidence in this case, that the arguments of counsel are not evidence in this case.

INSTRUCTION NO. 38 1/2
At various times during this trial evidence has been admitted as against less than all the defendants. You may not consider such evidence in reaching a verdict as to defendants against whom such evidence was not admitted. In this regard, if you have a reasonable doubt as to whether certain evidence was admitted as to a particular defendant, whether by your inability to remember, or for any reason, you should not consider such evidence in arriving at a verdict with respect to such defendant.

INSTRUCTION NO. 38 5/8
You are instructed that in law, all persons are presumed to have a good reputation for pence and quietude. So, in this case, the defendants are presumed in law to have a good reputation for peace and quietude. Such presumption, however, is not conclusive and may be rebutted the same as any other presumption.

INSTRUCTION NO. 39
The jury has been allowed to view the premises where the alleged homicide is testified to have taken place. You are instructed that what you observed during the inspection of the premises can in no case become evidence, nor are you entitled to take it into consideration in arriving at your verdict in this case, except as a means to better understand and apply the testimony which has been produced here at the trial. You are to determine the issues in this case from the evidence given you on the witness stand, and from nothing else.

INSTRUCTION NO. 40
The court further instructs you that the existence of any material fact, or state of facts, may be established by circumstantial evidence as well as by direct evidence. It is the law of the State of Indiana that circumstantial evidence to be sufficient to warrant a conviction in a criminal case must be of a conclusive character.
The true test by which to determine the value of circumstantial evidence in respect to its sufficiency to warrant a conviction of a defendant in any case involving the alleged commission of a crime, is not whether the proof, if any, establishes circumstances which are consistent, or which coincide, with the theory or hypothesis of the defendant's guilt, - but whether the circumstances satisfactorily established are of so conclusive a character, and point so surely unerringly to the guilt of the defendant, as to exclude every reasonable hypothesis of his innocence. The force of circumstantial evidence being exclusive in its character, the mere coincidence of a given number of circumstances with the hypothesis of guilt, or that they would account for, or concur with, or render probable, the guilt of the accused, is not a reliable test, - unless the circumstances rise to such a degree of cogency and force so as, to convince you beyond a reasonable doubt of the guilt of the defendants.

INSTRUCTION NO. 40 1/4
Facts in a criminal prosecution may be established and proved by circumstances as well as by direct evidence.

Circumstantial evidence is the proof of such facts and circumstances connected with and surrounding the commission of the crime charged, from which inferences may be drawn which tend to show the guilt or innocence of the person charged, and if the inferences thus drawn are sufficient to satisfy the minds of the jury beyond a reasonable doubt, of the existence of the facts sought to be established, then such facts would be sufficiently proven and the jury would be justified in acting thereon in the rendition of their verdict.

Before the inferences can be properly drawn from circumstances, the circumstances themselves should be established to the satisfaction of the jury. In a criminal case, the defendant may be convicted upon circumstantial evidence alone, or upon circumstantial and direct evidence combined. It is the duty of the jury in rendering the verdict to consider all the evidences in the case, whether it be circumstantial or direct, for the purpose of determining the guilt or innocence of the defendant, keeping in view the fact, that in order to convict, the defendant must be proved guilty beyond reasonable doubt.

INSTRUCTION NO. 40 1/2
The Court instructs the jury that in drawing only inference from any subsidiary fact proven beyond a reasonable doubt, the jury is not permitted to indulge in suppositions, possibilities, conjecture, speculation or guess. Neither is the jury permitted to draw unreasonable or unnatural inference from the evidence. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances themselves must be proved beyond a reasonable doubt and not presumed or inferred from other inference.

INSTRUCTION NO. 40 3/4
The guilt of a defendant may not be established alone by any confession or other statement made by her outside of this trial. Before any person may be convicted of a criminal offense, there must be proof, independent of any such statement, that the crime in question was committed.

INSTRUCTION NO. 41
Every person who shall old or abet in the commission of a felony, or who shall counsel, encourage, hire, command, or otherwise procure a felony to be committed, may be charged by indictment, or affidavit, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted; and, upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.

INSTRUCTION NO 41 1/4
The mere presence of a person at the commission of a felony does not make him a party to the commission of it.

INSTRUCTION NO. 41 3/8
Intention is a design purpose resolve or determination of the mind, and referring to an act, it means the state of mind with which the act is done. In determining the questions of the defendant's intent, if any, in killing the person described in the indictment, ? ? ? ? ? if you find they did kill her, you may consider the act, if any used, and the manner of using it, and any other facts or circumstances disclosed by the evidence which would send to show the state of the defendants mind when the killing, if any, was done.

INSTRUCTION NO. 41 1/2
A person is ordinarily presumed to intend the natural consequences of his or her acts; therefore, if a dangerous and deadly weapon be deliberately used upon a vital part of the body, by a person, this warrants the presumption of an intent to kill. The intent to kill need not necessarily be proved by direct or positive evidence. It may be inferred from all the circumstances of the case, if the evidence warrants it.

INSTRUCTION NO. 41 5/8
I instruct you that your verdict should not be based upon mere suspicion, possibility, guesswork or conjecture. Here opportunity to commit the crime charged is not enough to justify a verdict of guilty in this case.

INSTRUCTION NO. 41 3/4
An infant between the ages of seven and fourteen years is presumed to be incapable of committing crimes, but the presumption may be rebutted by proof that the infant possessed sufficient discretion to be aware of the nature or the act.

INSTRUCTION NO. 41 7/8
The presumption of incapacity attaching to an infant between the ages of seven and fourteen years must be rebutted beyond a reasonable doubt, before the infant can be convicted of any crime.

INSTRUCTION NO. 42
The Court, in its rulings did not, and does not now, intend to express any opinion as to any question of fact; all questions of fact as well as the law, being exclusively for your determination as elsewhere stated in these instructions.

INSTRUCTION NO. 43
A defendant may or may not testify in his own behalf, as he please and is not required to prove his innocence.
In this case the defendants, Paula Marie Baniszewski, John Stephen Baniszewski., and Coy Hubbard have not testified in their own behalf. It is your duty under our law not to comment upon, refer to, or in any manner consider this fact in the making of any verdict you may return in this cause.

INSTRUCTION NO. 44
The defendants Gertrude Baniszewski alias Gertrude Wright and Richard Hobbs in this case have testified in their own behalf. Their testimony should be taken and considered and weighed by you the same as that of any other witness in the case.

INSTRUCTION NO. 45
You are instructed by the court that photographs were admitted in evidence in this case for the purpose of aiding the jury in determining certain facts deemed proper by this Court. You are instructed, however, that you are not to permit these photographs to inflame your minds and that you should not, to any extent, permit these photographs to bias or prejudice you against the defendants. They are not in the record for that purpose. The defendants are entitled to your cool, calm and free deliberation, and the exhibits should be considered by you only for the purpose for which this Court has admitted them in evidence.

INSTRUCTION NO. 46
The law presumes that a man is of sound mind until there is some evidence to the contrary, in prosecutions for offense against the law, an accused is entitled to an acquittal if the evidence engenders a reasonable doubt as to his mental capacity at the time the alleged offenses is charged to have been committed. Evidence rebutting or tending to rebut the presumption of sanity need not, to entitle the defendant, Gertrude Baniszewski alias Gertrude Wright, to an acquittal, preponderate in favor of the accused. It will be sufficient if, when considered in connection with all of the evidence introduced in case, it raises in your minds a reasonable doubt.

INSTRUCTION NO. 47
The Court further instructs you that the defense of insanity is one which should be carefully considered by the Jury. The evidence to this point should be carefully considered and weighed by the jury for the reason that if the accused, Gertrude Baniszewski, alias Gertrude Wright, was in truth insane at the time of the commission of the alleged acts, then she ought not to be punished for such acts. The evidence on this question of insanity ought to be carefully considered by the jury for another reason, and that is because a due regard for the ends of justice and the peace and welfare of society demands it, - to the and that party charged with crime may not make use of the plea of insanity as a means to defeat the ends of justice and as a shield to protect her from criminal responsibility in case of violation of law.

INSTRUCTION NO. 47 1/4
Frenzy, arising solely from the passions of anger, no matter how furious, is not necessarily unsoundness of mind. A sane woman with ordinary will power, which is unimpaired by disease, is required by law, to govern and control her passions. If she yields to wicked passions, and purposely and maliciously kills another, she cannot escape the penalty prescribed by law, upon the ground of mental incapacity; that state of mind caused by wicked and ungovernable passion, resulting not from mental lesion, but solely from evil passion, constitutes that mental condition which the law abhors and to which the term malice is applied.

INSTRUCTION NO. 48
You are further instructed that it is the law in Indiana that a person may have sufficient mental capacity to know right from wrong and to be able to understand the nature and consequences of her act and not be criminally responsible for her actions. If the will power is so impaired by an insane mind that she cannot resist an impulse to commit a criminal act, then she is not of sound mind.

INSTRUCTION NO. 49
You are instructed that the law of Indiana recognizes temporary insanity. There is a distinction between the definition of temporary insanity in the law and in medicine, and it is the law of Indiana that if a person is temporarily insane at the time of the commission of the alleged act, then you must find her not guilty.

INSTRUCTION NO. 50
Where there is mental capacity sufficient to fully comprehend the nature and consequences of an act, and unimpaired willpower strong enough to master an impulse to commit a crime, you may find there is criminal responsibility.

INSTRUCTION NO. 50 1/4
The opinions of medical experts given in this case in reference to the unsoundness of mind of the defendant at the time of the alleged killing, should be considered by you in connection with all the other evidence in the case, but you are not bound to act upon them to the exclusion of all the other evidence. Taking into consideration these opinions, and giving them just weight, you should determine for yourselves from the whole evidence whether the defendant was or was not a person of sound mind at the time of the alleged killing, if any.

INSTRUCTION NO. 51
The court instructs you that where an accused has filed a Special Plea of Insanity at the time of the alleged commission of the offense charged, evidence of her mental condition prior and subsequent to the offense and at the time of the trial are to be considered by you, together with all the other evidence relating thereto, to determine if the defendant, Gertrude Baniszewski, alias Gertrude Wright, at the time of the alleged commission of the offense was of sound or unsound mind.

INSTRUCTION NO. 52
The defendants, John Stephen Baniszewski and Coy Hubbard, and Richard Hobbs have withdrawn their Pleas of Insanity. You will not consider said Pleas of Insanity in arriving at a verdict as to the said defendants, John Stephen Baniszewski and Coy Hubbard, and Richard Hobbs.

INSTRUCTION NO. 53
The rule of law which clothes every person accused of crime with presumption of innocence, and imposes upon the State the burden of establishing his guilt beyond a reasonable doubt, is not intended to aid any one who is in fact actually guilty of crime to escape from just and merited punishment, but is a humane provision of law, which is intended, so far as human agencies can, to guard against the danger of any innocent person being unjustly accused or punished.

INSTRUCTION NO. 54
As stated in a previous instruction, - upon an indictment charging murder in the first degree as charged in indictment, the defendants, Gertrude Baniszewski alias Gertrude Wright, Paula Marie Baniszewski, John Stephen Baniszewski, Richard Hobbs or Coy Hubbard, or any or all of them may be found guilty of murder in the first degree or they may be found guilty of any one or the lesser degrees of homicide defined by the statute, or they may be found not guilty.

If under the law and the evidence you shall find the defendants, Gertrude Baniszewski, alias Gertrude Wright, Paula Marie Baniszewski, John Stephen Baniszewski, Richard Hobbs or Coy Hubbard or all of them guilty, then you must determine the degree of guilt.

If you find them or any of them guilty of murder and have a reasonable doubt as to whether they are guilty of murder in the first degree or murder in the second degree, then you should find them guilty of murder in the second degree.

And if you find them or any of them guilty and have a reasonable doubt as to whether they or any of them are guilty of murder in the second degree, or manslaughter, then you should find them or any of them guilty of manslaughter.

INSTRUCTION NO. 55
If you find the defendant, Gertrude Baniszewski alias-Gertrude Wright, Paula Marie Baniszewski, John Stephen Baniszewski, Richard Hobbs or Coy Hubbard or any or all of them guilty of murder in the first degree as charged in the indictment then you may return a verdict fixing a penalty of death or a penalty of life imprisonment, as you, in your judgment, may determine.

If, therefore, you find the defendant, Gertrude Baniszewski alias Gertrude Wright, Paula Marie Baniszewski, John Stephen Baniszewski Richard Hobbs or Coy Hubbard or any of all of them guilty of murder in the first degree the form of your verdict may be in substance:

"We, the Jury, find the defendant (naming him or her as the case may be) guilty of murder in the first degree as charged in the indictment and that he or she shall suffer death," or your verdict may be in substance:

"We, the Jury, find the defendant (naming him or her as the case may be) guilty of murder in the first degree as charged in the indictment and that he or she be imprisoned in the Indiana State Prison or Indiana Women's Prison during life."

If you find the defendant, Gertrude Baniszewski alias Gertrude Wright, Paula Marie Baniszewski, John Stephen Baniszewski, Richard Hobbs or Coy Hubbard or any or all of them guilty of murder in the second degree as covered in the indictment then the statute prescribes the punishment - namely that the defendant, or any or all of them, shall be imprisoned in the Indiana State Prison or Indiana Women's Prison as the case may be during life and it will not be necessary for you to fix or state the penalty in your verdict: and the form of your verdict should be in substance:

"We the Jury, find the defendant, (naming him or her as the case may be) guilty of murder in the second degree as covered by the indictment.

If you find the defendant, Gertrude Baniszewski alias Gertrude Wright, Paula Marie Baniszewski, John Stephen Baniszewski, Richard Hobbs or Coy Hubbard or any or all of them guilty of manslaughter, as covered by the indictment, then the statute prescribes that the said defendant shall be imprisoned for an indeterminate period of not less than two (2) years nor more than twenty-one (21) years; and it will not be necessary for you to fix the term of imprisonment in your verdict. However, the said defendant's age should be determined from the evidence and set out in the verdict, if his or her age can be determined by you from the evidence, If, therefore, you find the defendant, Gertrude Baniszewski. alias Gertrude Wright, Paula Marie Baniszewski, John Stephen Baniszewski, Richard Hobbs or Coy Hubbard or any or all of then guilty of manslaughter, as covered by the indictment, the form of your verdict should be in substance:

"We, the Jury, find the defendant, (naming him or her as the case may be) guilty of manslaughter as covered by the indictment, and that his or her age is _____ years (inserting his or her age as you may find it to be) or stating that you are unable to determine his or her age from the evidence.

INSTRUCTION NO. 56
If you find the defendant, Gertrude Baniszewski alias Gertrude Wright, guilty of Murder in the First Degree as charged in the indictment, but was of unsound mind at the time in question, the form of your verdict may be in substance:

"We, the Jury, find the defendant Gertrude Baniszewski alias Gertrude Wright did consult the offense of First Degree Murder as charged in the indictment, but was of unsound mind at said time and that therefore said defendant is not guilty of said offense."

If you find the defendant, Gertrude Baniszewski alias Gertrude Wright, guilty of Murder in the Second Degree as covered by the indictment, but was of unsound mind at the time in question the form of your verdict may be in substance:

"We, the Jury, find the defendant, Gertrude Baniszewski alias Gertrude Wright did commit the offense of Second Degree Murder as covered by the indictment but was of unsound mind at said time and that therefore said defendant is not guilty of said offense."

If you find the defendant, Gertrude Baniszewski alias Gertrude Wright, guilty of Manslaughter, as covered in the indictment, but was of unsound mind at the time in question, the form of your verdict may be in substance:

"We, the Jury, find the defendant Gertrude Baniszewski alias Gertrude Wright did commit the offense of Manslaughter as covered by the indictment, but was of unsound mind at said time and that therefore said defendant is not guilty of said offense."

INSTRUCTION NO. 57
If you find the defendant, Gertrude Baniszewski alias Gertrude Wright, Paula Marie Baniszewski, John Stephen Baniszewski, Richard Hobbs or Coy Hubbard, or any or all of them, not guilty , then the form of your verdict should be:

"We, the Jury, find the defendant, (naming him or her as the case may be) not guilty."

You will be furnished with verdict forms in blank for your convenience and they may be used, or not used, by you as you prefer. In other words, the Jury may prepare and use its own form of verdict if so desired.

INSTRUCTION NO. 58
The Court further instructs you that while it is the duty of each juror to act upon his own individual judgment and determine for himself the issue of the guilt or innocence of the defendants and each of them of the crimes charged or covered in the indictment, and that he must look solely to the law and the evidence in the cause in making such determinations, yet, it is likewise the duty of each juror to consult honestly, freely and fairly with his fellow jurors, and endeavor with them by a fair consideration of the law and evidence in the cause, to arrive at a just conclusion as to the guilt or innocence of the defendants. No juror, through carelessness or indifference, should yield his own judgment in this cause to the judgment of his fellow jurors. Neither should he, on the other hand, allow mere pride or personal opinion to prevent him from consulting and reasoning and deliberating with his fellow jurors in an honest and good-faith effort to arrive at a just verdict in this cause.

INSTRUCTION NO. 59
This cause is submitted to you with confidence that you will faithfully discharge the duty resting upon you as jurors, without being moved by any undue demand for conviction on the part of the state, and without being swayed from the right performance of your duty by an appeal to your sympathy.

As jurors charged with the solemn duty of assisting the Court in the administration of justice, you will put aside all feeling of sentiment, all consideration of public approval or disapproval, and look steadfastly to the law and to the evidence in the case.

INSTRUCTION NO. 60
IT IS NECESSARY, from this time until you are discharged by the Court, that you remain together, and in charge of the officers detailed for that purpose. You must not communicate on any subject whatsoever with any members of this jury except to answer such questions as may be asked you by the officer by direction of this Court. If at any time you have any desire to communicate with the court, you may notify the officer to that effect and he will communicate with me.

INSTRUCTION NO. 61
Mrs. Harrington and Mrs. Reich, you are the alternate jurors in this case. So far, we have not needed your services, as no member of the jury had to be excused. The jury is now ready to retire to deliberate. You will not retire with the jury. You will stay apart from them. You will make yourself available however, if your services should he needed. Do not talk to anybody about this case or on any subject connected therewith and do not let anybody else talk to you about the case or on any subject connected therewith. You are to be in charge of a bailiff and separated from the jury.

INSTRUCTION NO. 62
When you retire to your jury room you will first select one of our number as your foreman; and when you have agreed upon your verdict you will reduce it to writing and cause your foreman to sign the same; and when your verdict has been so agreed upon and signed, you will bring it into open court.

You will now be in charge of the bailiff.

Saul I. Rabb
Judge, Marlon Criminal Court
Division Two
e-mail: webmaster@sylvialikens.com

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