Roberts v. State

Appellant was convicted upon a charge -of burglary, and sentenced to the State prison for a period of seven years.

The seventh ‘instruction given by the court was as follows:

’“Under the evidence in this cause, if you find the defendant iguiltypit'is'an aggravated burglary, and you have a right to fix a proper penalty.”

That the instruction was erroneous, because it invaded the province of the jury, and was, in effect, an instruction to them to inflict a severe penalty, seems clear. For analogous cases see Cline v. Lindsey, 110 Ind. 337, and cases there cited.

*341After the jury retired, and had had…